Sri S R Rajaiah vs Sri B K Narendra Babu on 29 April, 2026

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    Karnataka High Court

    Sri S R Rajaiah vs Sri B K Narendra Babu on 29 April, 2026

                                           NC: 2026:KHC:24085-DB
                                            RFA No. 848 of 2015
                                       C/W MFA No. 4414 of 2015
                                            RFA No. 799 of 2015
     HC-KAR
    
         IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    
              DATED THIS THE 29TH DAY OF APRIL 2026
    
                            PRESENT
                 HON'BLE MR. JUSTICE D. K. SINGH
                                 AND
            HON'BLE MS. JUSTICE TARA VITASTA GANJU
           REGULAR FIRST APPEAL NO. 848 OF 2015 (SP)
                                 C/W
     MISCELLANEOUS FIRST APPEAL NO.4414 OF 2015 (CPC)
           REGULAR FIRST APPEAL NO.799 OF 2015 (SP)
    
    IN RFA No.848/2015 :
    
    BETWEEN:
    
    SRI. S.R.RAJAIAH
    S/O LATE REVANNA,
    AGED ABOUT 85 YEARS,
    R/AT NO.574, 2NDCROSS,
    JAYADEVA HOSPITAL ROAD,
    NELAMANGALA TOWN,
    BANGALORE RURAL DISTRICT-562123.
                                                 ...    APPELLANT
    (BY SRI.IMRAN.A, ADVOCATE)
    
    AND:
    
    1.    SRI. B.K.NARENDRA BABU
          S/O S. KRISHNAPPA,
          AGED ABOUT 42 YEARS,
          RJ/AT NO.687, 9THCROSS,
          BANGALORE,NAGASANDRA POST,
          BANGALORE-560073.
    
    2.    SRI. S.R. MAHESH
          S/O S.R. RAJAIAH,
          AGED ABOUT 52 YEARS,
          PERSONAL SECRETARY TO VICE-CHANCELLOR,
          OFFICE OF THE VETERINARY COLLEGE,
                                 1
                                        NC: 2026:KHC:24085-DB
                                        RFA No. 848 of 2015
                                   C/W MFA No. 4414 of 2015
                                        RFA No. 799 of 2015
     HC-KAR
    
         NEAR ALUMINI ASSOCIATION,
         UNIVERSITY OF AGRICULTURAL SCIENCES,
         HEBBAL, BANGALORE-24.
    
    3.   SMT. SUJATHA
         W/O RAJASHEKAR,
         AGED ABOUT 60 YEARS,
         R/AT NO.467/4B,
         "BILWASHRI", 3RD CROSS,
         2NDMAIN ROAD, VIDYAPEETHA LAYOUT,
         WARD NO.54, THYAGARAJANAGAR,
         BANGALORE-560028.
    
    4.   SMT. S.R. RENUKA
         W/O KUMAR,
         AGED ABOUT 33 YEARS,
         R/AT BEHIND VEERABHARESHWARA TRADERS,
         IRON AND STEEL TRADERS,
         B.M. ROAD, BIDADI,
         BANGALORE RURAL DISTRICT-562109.
    
    5.   SRI. S.R. DAYANANDA
         S/O S.R. RAJAIAH,
         AGED ABOUT 44 YEARS,
         R/AT 574, 2NDCROSS,
         JAYADEVA HOSTEL ROAD,
         NELAMANGALA TOWN,
         BANGALORE RURAL DISTRICT-562123.
    
    6.   SRI. BALAJI
         S/O VENKATASWAMY,
         AGED ABOUT 55 YEARS,
         PROPRIETOR M/S.VENTURA PROPERTIES,
         NO.38/B, 1ST FLOOR, 4TH CROSS,
         30TH MAIN, BTM 2NDSTAGE,
         BANGALORE-560076.
                                        ... RESPONDENTS
    (BY SRI. IRFANA NAZEER, ADVOCATE)
    
    
    THIS RFA FILED UNDER ORDER 41 RULE 1 R/W SEC. 96 OF CPC,
    AGAINST THE JUDGMENT AND DECREE DATED 26.03.2015
    PASSED IN OS NO.1700/2005 ON THE FILE OF THE PRESIDING
    
    
                               2
                                           NC: 2026:KHC:24085-DB
                                          RFA No. 848 of 2015
                                     C/W MFA No. 4414 of 2015
                                          RFA No. 799 of 2015
         HC-KAR
    
    OFFICER, FAST TRACK COURT-II BENGALURU RURAL DISTRICT,
    BENGALURU DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.
    
    IN MFA NO.4414/2015
    
    BETWEEN:
    
    SRI. S.R. RAJAIAH
    S/O LATE REVANNA,
    AGED ABOUT 85 YEARS,
    R/AT NO.574, 2ND CROSS,
    JAYADEVA HOSPITAL ROAD,
    NELAMANGALA TOWN,
    BANGALORE RURAL DISTRICT-562 123.
                                                 ...   APPELLANT
    (BY SRI. SHIVAKUMAR GOWDA., ADVOCATE)
    AND:
    
    1.      SRI. B.K. NARENDRA BABU
            S/O S. KRISHNAPPA,
            AGED ABOUT 42 YEARS,
            RJ/AT NO.687, 9TH CROSS,
            BANGALORE, NAGASANDRA POST,
            BANGALORE-560 073.
    
    2.      SRI. S.R. MAHESH
            S/O S.R. RAJAIAH,
            AGED ABOUT 52 YEARS,
            PERSONAL SECRETARY TO VICE-CHANCELLOR,
            OFFICE OF THE VETERINARY COLLEGE,
            NEAR ALUMINI ASSOCIATION,
            UNIVERSITY OF AGRICULTURAL SCIENCES,
            HEBBAL, BANGALORE-24.
    
    3.      SMT. SUJATHA
            W/O RAJASHEKAR,
            AGED ABOUT 60 YEARS,
            R/AT NO.467/4B,
            "BILWASHRI", 3RD CROSS,
            2ND MAIN ROAD, VIDYAPEETHA LAYOUT,
            WARD NO.54, THYAGARAJANAGAR,
            BANGALORE-560 028.
    
    
                                 3
                                           NC: 2026:KHC:24085-DB
                                           RFA No. 848 of 2015
                                      C/W MFA No. 4414 of 2015
                                           RFA No. 799 of 2015
         HC-KAR
    
    
    
    4.      SMT. S.R. RENUKA
            W/O KUMAR,
            AGED ABOUT 33 YEARS,
            R/AT BEHIND VEERABHARESHWARA TRADERS,
            IRON AND STEEL TRADERS,
            B.M. ROAD, BIDADI,
            BANGALORE RURAL DISTRICT-562 109.
    
    5.      SRI. S.R. DAYANANDA
            S/O S.R. RAJAIAH,
            AGED ABOUT 44 YEARS,
            R/AT 574, 2ND CROSS,
            JAYADEVA HOSTEL ROAD,
            NELAMANGALA TOWN,
            BANGALORE RURAL DISTRICT-562 123.
    
    6.      SRI. BALAJI
            S/O VENKATASWAMY,
            AGED ABOUT 55 YEARS,
            PROPRIETOR M/S.VENTURA PROPERTIES,
            NO.38/B, 1ST FLOOR, 4TH CROSS,
            30TH MAIN, BTM 2ND STAGE,
            BANGALORE-560 076.
                                           ...    RESPONDENTS
    
            (BY SMT. LAKSHMI IYENGAR, SR. COUNSEL FOR
               SRI. IRFANA NAZEER, ADVOCATE FOR R1;
               SRI. NARAYAN JHA, ADVOCATE FOR R2;
               SRI. P.N. RAJESHWARA, ADVOCATE FOR R6(I);
               R3-R5 ARE SERVED;
               VIDE ORDER DATED 20.11.2024, R6(A-H) ARE
               DELETED)
    
    IN RFA NO. 799/2015
    
    BETWEEN:
    
    SRI. BALAJI
    S/O VENKATASWAMY,
    AGED ABOUT 55 YEARS,
    PROPRIETOR,
    M/S VENUTURA PROPERTIES,
    NO.38/B, 1STFLOOR, 4THCROSS,
    
                                  4
                                          NC: 2026:KHC:24085-DB
                                        RFA No. 848 of 2015
                                   C/W MFA No. 4414 of 2015
                                        RFA No. 799 of 2015
     HC-KAR
    
    30TH MAIN, BTM 2NDSTAGE,
    BANGALORE-560076.
                                              ...   APPELLANT
    (BY SRI. RAJESWARA.P.N., ADVOCATE)
    
    AND:
    
    1.   SRI. B.K. NARENDRA BABU
         S/O S. KRISHNAPPA,
         AGED ABOUT 42 YEARS,
         R/AT NO.687, 9THCROSS,
         BANGALORE, NAGASANDRA POST
         BANGALORE-560 073.
    
    2.   S.R. RAJAIAH
         S/O LATE REVANNA,
         AGED ABOUT 75 YEARS,
         R/AT NO.574, 2NDCROSS,
         JAYADEVA HOSPITAL ROAD,
         NELAMANGALA TOWN,
         BANGALORE RURAL DISTRICT-562 123.
    
    3.   S.R. MAHESH
         S/O S.R. RAJAIAH,
         AGED ABOUT 52 YEARS,
         PERSONAL SECRETARYTO VICE-CHANCELLOR,
         OFFICE OF THE VETERINARY COLLEGE,
         NEAR ALUMINI ASSOCIATION,
         UNIVERSITY OF AGRICULTURAL,
         SCIENCES, HEBBAL, BANGALORE-24.
    
    4.   SMT. SUJATHA
         W/O RAJASHEKAR,
         AGED ABOUT 60 YEARS,
         R/AT NO.467/4G,
         BILWASHRI, 3RDCROSS,
         2NDMAIN ROAD, VIDYAPEETHA LAYOUT,
         WARD NO.54, THYAGARAJANAGAR,
         BANGALORE-560028.
    
    5.   SMT. S.R. RENUKA
         W/O KUMAR,
         AGED 33 YEARS,
         RESIDING AT BEHIND,
    
                               5
                                                        NC: 2026:KHC:24085-DB
                                                      RFA No. 848 of 2015
                                                 C/W MFA No. 4414 of 2015
                                                      RFA No. 799 of 2015
         HC-KAR
    
           VEERABHADRESHWARA TRADERS,
           IRON AN STEEL TRADERS,
           B.M. ROAD, BIDADI,
           BANGALORE RURAL DISTRICT-562 109.
    
    6.     S.R. DAYANANDA
           W/O KUMAR,
           S/O S.R. RAJAIAH,
           AGED ABOUT 44 YEARS,
           JAYADEVA HOSTEL ROAD,
           NELAMANGALA TOWN,
           BANGALORE RURAL DISTRICT-562 123
                                          ...                    RESPONDENTS
    
    (BY SRI. IRFANA NAZEER, ADVOCATE)
    
    THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE
    JUDGMENT AND DECREE DATED 26.03.2015 PASSED IN
    O.S NO.1700/2005 ON THE FILE OF THE PRESIDING
    OFFICER, FAST TRACK COURT-II, BENGALURU (R)
    DISTRICT, BENGALURU, DECREEING THE SUIT FOR
    SPECIFIC PERFORMANCE.
    
    THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT
    ON 17.12.2025, COMING ON FOR PRONOUNCEMENT OF
    JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED
    THEREIN AS UNDER:
    
     CORAM:         HON'BLE MR. JUSTICE D K SINGH
                                &
                    HON'BLE MS. JUSTICE TARA VITASTA GANJU
    
                                 CAV JUDGMENT
    

    (PER: HON’BLE MS. JUSTICE TARA VITASTA GANJU)

    TABLE OF CONTENTS

    SPONSORED

    I. Preface: ……………………………………………………. 7
    II. Brief Facts: ……………………………………………….. 9

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    RFA No. 799 of 2015
    HC-KAR

    III. Impugned Judgment: ………………………………. 14
    IV. Contentions of the Appellants/Defendants: … 15
    V. Contentions of Respondent No.1/Plaintiff: …. 17
    VI. Contentions of Respondent No.6/Def No.6: …. 19
    VII. Issues for Consideration: …………………………. 19
    VIII. Analysis and Findings: ……………………………. 20

    (a) The Agreement to Sell dated 24.12.2004: 20

    (b) The Undisputed Facts: ………………………… 26

    (c) The Other Agreement To Sell: ………………. 31

    (d) The Evidence: …………………………………… 37

    (e) The Existence of Two Agreements: ………. 42

    (f) The HMT Suit: ……………………………………. 49

    (g) Violation of Interim Order: …………………. 52

    (h) Readiness and Willingness: ………………… 64

    (i) The HMT Plaint: …………………………………. 83

    (j) Lis Pendence ……………………………………. 94

    (k) He who seeks equity must do equity: …… 97
    IX. Conclusion: …………………………………………… 99

    I. Preface:

    1. These appeals are directed against a common

    Judgment and Decree dated 26.03.2015 passed by the Fast

    Track Court-II, Bengaluru Rural District, Bengaluru, in

    O.S.No.1700/2005 (hereinafter referred to as the ‘Impugned

    Judgment’). By the Impugned Judgment, the suit filed by the

    respondent No.1/plaintiff being O.S.No.1700/2005 has been

    decreed with costs. The appellant/defendant No.1 has been

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    RFA No. 799 of 2015
    HC-KAR

    directed to receive the balance sale consideration from the

    respondent No.1/plaintiff and to execute a registered sale

    deed along with defendant Nos.2, 3, 5 and 6 in favour of the

    respondent No.1/plaintiff, within two months from the date

    of the Judgment. In addition, it has been directed that if the

    defendants fail to execute the registered sale deed in favour

    of the plaintiff, the plaintiff is entitled to get the sale deed

    registered through the Court.

    2. Three appeals have been filed before this Court.

    2.1 The first appeal being RFA No.799/2015, has been filed

    by respondent No.6/defendant No.6, the subsequent

    purchaser, seeking to set aside the Impugned Judgment.

    2.2 The second appeal being RFA No.848/2015, has been

    filed by the seller of the suit schedule property being the

    appellant/defendant No.1, also seeking to set aside the

    Impugned Judgment.

    2.3 MFA No.4414/2015 has been filed by the

    appellant/defendant No.1/seller of the suit schedule

    property), also seeking to challenge the Impugned Judgment

    to the extent that it directs the attachment of the suit

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    schedule property of the seller as well as for the reason that

    the Impugned Judgment did not deal with I.A.No.5 filed by

    the respondent No.1/plaintiff under Order XXXIX Rule 2A of

    the Code of Civil Procedure, 1908 (hereinafter referred to as

    the ‘CPC‘), separately but treated the same as an

    Interlocutory Application without adducing separate evidence

    on the said application.

    3. The parties are also referred to as they were arrayed

    before the learned Trial Court in O.S.No.1700/2005, for the

    sake of convenience.

    II. Brief Facts:

    4. Briefly, the facts are that the appellant/defendant No.1

    acquired title to the property bearing Sy.No.87 measuring 6

    acres, 27 guntas, in Bethanagere Village, Dasanapura Hobli,

    Nelamangala Taluk (hereinafter referred to as the ‘suit

    schedule property’) under and by virtue of a registered Sale

    Deed dated 21.10.1971. The appellant/defendant No.1, along

    with defendant Nos.2 to 5, executed an Agreement to Sell

    dated 24.12.2004 in favour of the respondent No.1/plaintiff,

    agreeing to sell the suit schedule property measuring 6 acres,

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    27 guntas for a consideration of Rs.7,25,000/- per acre for a

    total sum of Rs.48,39,375/-(hereinafter referred to as the

    “ATS”).

    4.1 On the date of execution of this Agreement, the

    respondent No.1/plaintiff paid a sum of Rs.5,00,001/- as

    advance. Subsequently, on 24.02.2005, the respondent

    No.1/plaintiff paid a further sum of Rs.20,00,000/-, making

    a total advance of Rs.25,00,001/-. The balance sale

    consideration of Rs.23,39,375/- was agreed to be paid on or

    before 31.05.2005.

    4.2 The respondent No.1/plaintiff asserted that he was

    always ready and willing to perform his part of the contract

    and issued a Legal Notice dated 20.05.2005 calling upon the

    defendants to receive the balance sale consideration and

    execute the sale deed. However, it is averred that the

    defendants failed to comply with the same, compelling the

    respondent No.1/plaintiff to institute the suit seeking a

    decree for specific performance of the ATS.

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    4.3 I.A.No.1 was filed setting out the plaintiff’s

    apprehension that the said defendant may alienate or

    encumber the suit property and an interim injunction was

    granted on 03.08.2005 by the learned Trial Court restraining

    such acts and any alteration of the property, including

    formation of layout. The order continued thereafter.

    4.4 The defendants entered appearance and filed their

    written statements contesting the suit. Appellant/

    defendant No.1 denied the respondent No.1/plaintiff’s

    readiness and willingness to perform his part of the contract.

    It was contended that time was the essence of the contract,

    and the respondent No.1/plaintiff failed to pay the balance of

    the sale consideration within the stipulated period. The

    appellant/defendant No.1 further contended that the value of

    the property had substantially increased and that the

    respondent No.1/plaintiff had not taken steps to complete

    the transaction within the agreed time.

    4.5 During the pendency of the suit, an application in

    I.A.No.5 was filed being under Order XXXIX Rule 2A of the

    CPC, alleging violation of the order of interim injunction

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    passed by the learned Trial Court, by the appellant/

    defendant No.1, whereby the appellant/defendant No.1

    alienated the property to respondent No.6/defendant No.6.

    4.6 The learned Trial Court also allowed I.A.No.2 for

    impleadment of proposed respondent No.6/defendant No.6,

    noting that as a subsequent purchaser in a suit for specific

    performance, he is a necessary and proper party.

    4.7 Based on the pleadings filed by the parties, the learned

    Trial Court framed the following issues:

    “(i) Whether the plaintiff proves that the defendants
    executed the Agreement dated 24.12.2004 agreeing to
    sell the suit schedule property in favour of the plaintiff
    for valuable a consideration of Rs.48,39,375/- and
    received sum of Rs.5 Lakhs as advance?

    (ii) Whether the plaintiff further proves that in
    furtherance of the Agreement to Sell towards part
    performance of the contract, he has paid a sum of
    Rs.20 Lakhs to the defendants on 24.02.2005?

    (iii) Whether the plaintiff proves that he was ever ready
    and willing to perform his part of the contract, but the
    defendants committed default in performing their part
    of the contract?

    (iv)Whether the plaintiff is entitled for the relief of
    Specific Performance of Contract?

    (v) What Decree or Order?”

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    4.8 After respondent No.6/defendant No.6 was impleaded,

    an additional issue was framed by the learned Trial Court on

    14.02.2010, which is set out below:

    “Whether Defendant proves that he is a bonafide
    purchaser of the suit schedule property for value?”

    ;;; 5. To establish his case, the respondent No.1/plaintiff

    examined himself as P.W.1 and examined additional

    witnesses as P.W.2 to P.W.4, and produced several

    documents including the Agreement to Sell, Legal Notices,

    postal acknowledgements, sale deeds, and revenue records.

    On the other hand, appellant/defendant No.1 examined

    himself as D.W.1, while respondent No.6/defendant No.6

    examined himself as D.W.2 and produced a witness DW-3

    and documents, including the Agreement to Sell executed in

    his favour by the appellant/defendant No.1 for the suit

    schedule property.

    5.1 After examining the oral and documentary evidence,

    the learned Trial Court held that the execution of the

    Agreement to Sell dated 24.12.2004 stood proved and that

    the receipt of advance sale consideration was duly

    established. The learned Trial Court further found that the

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    plaintiff had successfully demonstrated continuous readiness

    and willingness to perform his part of the contract, as

    evidenced by his conduct and the issuance of a Legal Notice

    calling upon the defendants to execute the sale deed. It was

    also observed that the appellants/defendants had failed to

    perform their reciprocal obligations under the agreement and

    could not take advantage of their own default.

    5.2 Insofar as respondent No.6/defendant No.6 was

    concerned, the learned Trial Court held that the alleged

    subsequent purchase was hit by the doctrine of lis pendens

    and that respondent No.6/defendant No.6 could not claim to

    be a bonafide purchaser to defeat the rights of the

    respondent No.1/plaintiff.

    III. Impugned Judgment:

    6. The learned Trial Court decreed the suit and directed

    the defendants to execute the registered sale deed in favour

    of the respondent No.1/plaintiff upon receipt of the balance

    sale consideration within two months, failing which the

    respondent No.1/plaintiff was permitted to have the sale

    deed executed through the learned Trial Court. The learned

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    Trial Court further held that appellant/defendant No.1 had

    violated the said interim injunction and consequently ordered

    attachment of his immovable property. The learned Trial

    Court further directed that in the event no such property is

    available, appellant/defendant No.1 shall be detained in a

    civil prison for a period of one month.

    6.1 As stated above, aggrieved by the said order passed on

    the application filed under Order XXXIX Rule 2A of the CPC,

    the appellant/defendant No.1 has preferred M.F.A. No.

    4414/2015.

    IV. Contentions of the Appellants/Defendants:

    7. Learned counsel for the appellant/defendant No.1

    contends that the Impugned Judgment is liable to be set

    aside on the following grounds:

    7.1 That the learned Trial Court erred in decreeing the suit

    for specific performance without properly appreciating the

    pleadings and evidence on record. The respondent

    No.1/plaintiff failed to establish continuous readiness and

    willingness as required under Section 16(c) of the Specific

    Relief Act, 1963.

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    7.2 The respondent No.1/plaintiff failed to prove financial

    capacity to pay the balance of the sale consideration within

    the stipulated time.

    7.3 Learned counsel further submitted that the learned Trial

    Court failed to consider that time was the essence of the

    contract and the respondent No.1/plaintiff had failed to

    complete the transaction within the agreed period. It was

    argued that despite the expiry of the stipulated time, the

    respondent No.1/plaintiff did not tender the balance sale

    consideration nor take steps to complete the transaction,

    thereby disentitling him from seeking the equitable relief of

    specific performance.

    7.4 Lastly, it was contended that the learned Trial Court

    failed to appreciate the defence raised by respondent

    No.6/defendant No.6, who claimed to be a bonafide

    purchaser for value. Learned counsel submitted that

    respondent No.6/defendant No.6 had entered into an

    Agreement to Sell with appellant/defendant No.1 and

    subsequently obtained a registered sale deed in his favour

    upon payment of the entire sale consideration. It was

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    therefore averred that the respondent No.6/defendant No.6

    had acquired a valid title to the suit schedule property.

    Learned counsel averred that the findings recorded by the

    learned Trial Court are contrary to the material available on

    record and are therefore liable to be set aside.

    V. Contentions of Respondent No.1/Plaintiff:

    8. Learned Senior Counsel appearing for the respondent

    No.1/plaintiff on the other hand submitted that the execution

    of the Agreement to sell dated 24.12.2004 in respect of the

    suit schedule property and receipt of substantial advance

    consideration by appellant/defendant No.1 is not in dispute.

    It is contended that the respondent No.1/plaintiff had paid

    Rs.5,00,000/- as an advance and a further sum of

    Rs.20,00,000/- thereafter, and the parties had agreed to

    execute the registered sale deed within the stipulated period.

    8.1 It is further submitted that the respondent No.1

    /plaintiff was always ready and willing to perform his part of

    the contract. In support of the same, reliance is placed on

    the evidence of PW-1 to PW-4; the sale deeds are annexed

    as Ex.P-39 to Ex.P-49 and the Legal Notice dated

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    20.05.2005, which, according to the respondent

    No.1/plaintiff, clearly establishes that he had approached the

    defendants with the balance sale consideration and

    demanded execution of the sale deed.

    8.2 The learned Senior counsel further seeks to rely upon

    the statement of PW-1 dated 16.05.2005 wherein the

    respondent No.1/plaintiff had stated that PW-1 demanded

    that defendant Nos.1 to 5 perform their part of the contract

    and execute the sale deed. Reliance is also placed on the

    cross-examination of PW-1 in this behalf.

    8.3 The learned Senior Counsel in addition also has placed

    reliance on the evidence of PW-2 to PW-4 on record, who

    affirmed to the fact that it was the defendant Nos.1 to 5 who

    postponed the registration of the Sale Deed and demanded

    additional money from the respondent No.1/plaintiff to

    execute the same. Thus, the Sale Deed was not executed.

    8.4 Learned Senior Counsel further contended that, despite

    the subsisting interim order, appellant/defendant No.1

    alienated the suit schedule property in favour of respondent

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    No.6/defendant No.6, and such conduct clearly disentitles

    the appellant/defendant No.1 from seeking any relief from

    the Court. It is therefore submitted that the learned Trial

    Court, upon proper appreciation of the evidence on record,

    has rightly decreed the suit for specific performance, and the

    Impugned Judgment and decree do not call for interference.

    VI. Contentions of Respondent No.6/Def No.6:

    9. Learned Counsel for respondent No.6/defendant No.6

    contends that the Impugned Judgment and decree dated

    26.03.2015 are liable to be set aside as the finding on

    readiness and willingness is perverse. The respondent

    No.1/plaintiff failed to establish financial capacity and

    continuous readiness within the stipulated period ending

    31.05.2005. Though part payment of Rs.20,00,000/- was

    made, the balance consideration was admittedly not paid

    within time, and subsequent bank entries do not cure this

    defect.

    VII. Issues for Consideration:

    10. In view of the rival submissions advanced by the

    learned counsel for the parties and upon perusal of the

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    material available on record, the following issues arise for

    consideration before this Court:

    (i) Whether the respondent No.1/plaintiff has
    proved the execution of the Agreement to Sell
    dated 24.12.2004 and his readiness and
    willingness to perform his part of the contract?

    (ii) Whether respondent No.6/Defendant No.6 has
    established that he is a bona fide purchaser for
    value without notice of the Agreement to Sell?

    (iii) Whether the Trial Court was justified in holding
    that appellant/defendant No.1 had violated the
    interim injunction order dated 03.08.2005 and in
    imposing consequences under Order XXXIX Rule
    2A CPC
    ?

    (iv) Whether the Impugned Judgment and Decree
    dated 26.03.2015 passed in O.S. No.1700/2005
    warrants any interference by this Court?

    VIII. Analysis and Findings:

    (a) The Agreement to Sell dated 24.12.2004:

    11. As stated above, the sellers have challenged the

    Impugned Judgment stating that since time was of the

    essence of contract and the respondent No.1/plaintiff did not

    make payment of the amounts in the specified time, the

    agreement came to an end. It was further stated that the

    respondent No.1/plaintiff did not have financial capacity and

    has failed to prove his readiness and willingness to perform

    the Agreement to Sell. An examination of the Agreement to

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    Sell dated 24.12.2004 executed between the respondent

    No.1/plaintiff and the appellant/defendant No.1 and

    respondent Nos.2 to 5/defendant Nos.2 to 5 reflects that the

    ATS sets out that the sellers have agreed to the sell the suit

    schedule property at a price of Rs.7.25 Lakhs per acre,

    totalling to Rs.48,39,375/-. It further sets out that an

    advance sale consideration of Rs.5,00,001/- by way of cash

    has been received while the balance sale consideration of

    Rs.43,39,375/- is to be received within five months from the

    date i.e. by 31.05.2005. The ATS further sets out that the

    balance payment has to be made within the stipulated time

    failing which the advance will be forfeited as well as, in case

    the registered sale deed is not executed by the sellers, the

    purchasers are at liberty to take legal action seeking the land

    as well as the double the amount of advance paid from the

    seller and legal representatives. It further states that the

    claim can be made as against the other immovable and

    movable properties. The relevant extract of the translated

    copy of the ATS dated 24.12.2004 is set out below:

    “On the Twenty Fourth day of December Two
    Thousand Four (24.12.2004):

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    IN FAVOUR OF:

    Sri. B.K. Narendra Babu, S/o Sri. S. Krishnappa, aged
    about 32 years, residing at NO.687, 9th Cross,
    Bagalagunte, Nagasandra Post, Bengaluru – 560 073, By:

    Sri. S.R. Rajaiah, S/o Sri. Ravenna, aged about 75
    years, residing at NO.574, 2ndCross, Sri Jayadeva Hostel
    Road, Nelamangala Town, Bengaluru Rural District — 562
    123, and my children namely,

    (1) Smt. S.R. Sujatha, aged about 50 years,
    (2) Sri. S.R. Mahesh, aged about 42 years,
    (3) Smt. S.R. Renuka, aged about 35 years and
    (4) Sri. S.R. Dayananda, aged 34 years, have together,
    agreed and executed this deed of Agreement of conditions
    of absolute sale, witnesseth as follows:

    xxx xxx xxx
    In respect of such land in our self-occupation and
    enjoyment, when you after seeing the same have shown
    interest to purchase, as we are in urgent need of money for
    our family necessities, we too have agreed to sell the
    Schedule land, a price at the rate of Rs.7,25,000/-

    (Rupees Seven Lakh Twenty Five Thousand only) per one
    Acre of land is fixed in the presence of witnesses,
    accordingly it is agreed to sell total extent of 6 acres
    27 guntas of land, at Rs.48,39,375/- (Rupees Forty
    Eight Lakhs Thirty Nine Thousand Three hundred and
    Seventy Five only) and we have received an advance
    sale consideration of Rs.5,00,001/- (Rupees Five
    Lakhs One Rupee only) by way of cash in the presence
    of the below mentioned witnesses. We are obligated to
    receive from you the remaining sale consideration amount
    of Rs.43,39,374/- (Rupees Forty Three Lakhs Thirty Nine
    Thousand Three Hundred and Seventy Four only) within
    Five (5) months from the aforesaid date i.e., within
    31.05.2005.

    Within the stipulated period if you pay the remaining
    amount to us, and at your cost prepare the Sale
    Deed/GPA and other documents and call upon us to
    execute the sale deed in your name or in the name of
    your nominee, we are bound to execute the above
    said documents as per this agreement. If you fail to
    make payment of the balance sale consideration
    within the above stipulated time and fail to get the
    above documents registered, we will forfeit the
    advance amount paid by you.

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    In case, if we do not execute the Registered Sale
    Deed in spite of you paying the balance amount to us,
    then, as per this agreement we are bound and you are
    entitled to take legal action against us seeking the
    schedule land or to recover double the advance
    amount paid by you from us or from our legal
    representatives as also, you can claim from our other
    immovable and movable properties.”

    [Emphasis Supplied]

    11.1. It is the case of the appellant/defendant No.1 that

    respondent No.1/plaintiff did not have the balance sale

    consideration available with him and that even the evidence

    which has been placed on record by the respondent

    No.1/plaintiff does not reflect that he in fact had the balance

    sale consideration. Reliance is placed on the bank account

    statement produced by the respondent No.1/plaintiff as well

    as on the sale deeds to submit that no document has been

    produced to show that during the period from December

    2004 up to May 2005, necessary funds were available with

    the respondent No.1/plaintiff. The appellant/defendant No.1

    has further placed reliance upon the sale deeds which have

    been placed on record by the respondent No.1/plaintiff to

    submit that respondent No.1/plaintiff has produced Ex.P39

    to Ex.P49 to submit that even the sale deeds only totalled to

    Rs.13,83,500/- and the sale deeds from P45 to P49 are

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    pursuant to the expiry of the five months period. Thus, it is

    contended that the learned Trial Court erred in giving a

    finding on the readiness of the respondent No.1/plaintiff to

    perform his part of the contract. The appellant/defendant

    No.1 has also contended that the fact that remaining

    respondents (respondent Nos.2 to 5) who are the children of

    appellant/defendant No.1 were required to execute the sale

    deed is an incorrect finding since the properties were clearly

    the self-acquired properties of the appellant/defendant No.1

    and not ancestral properties. The appellant/defendant No.1

    has also averred that the statement of the witnesses, P.Ws.2

    to 4 do not disclose that respondent No.1/plaintiff actually

    went with cash to the house of the appellant/defendant No.1,

    thereby fulfilling the ATS. In essence, it is the case of the

    appellant/defendant No.1 that as on 31.05.2005, the

    respondent No.1/plaintiff was unable to establish that he had

    the money available with him and thus the Impugned

    Judgment could not have been passed.

    12. On the other hand, it is the respondent No.1/plaintiff’s

    contention that qua the readiness of respondent

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    No.1/plaintiff, the evidence of not only P.W.1 but also his

    other witnesses P.Ws.2 to 4 was given. It is further

    contended that the respondent No.1/plaintiff sold properties

    under the sale deeds which were at Ex.P39 to Ex.P49 to

    purchase the suit schedule properties. It is contended that in

    any event, the balance sale consideration was to be paid in

    cash as was the advance payment amount. Thus, the issue

    of there not being sufficient bank balance does not come into

    consideration. It has been averred that the appellant

    /defendant No.1 got a purchaser for higher value and hence

    failed to make the sale in favour of respondent No.1/plaintiff.

    The entire advance sale consideration of Rs.25,00,000/- was

    received in cash by the appellant/defendant No.1 and despite

    the Legal Notice dated 20.05.2005, calling upon the

    appellant/defendant No.1 to register the sale deeds, the

    appellant/defendant No.1 failed to do so and also refused to

    have his children, the respondent Nos.2 to 5 be made

    available for the execution of the Sale Deed despite all of

    them executing the ATS. Reliance is placed in this behalf on

    the evidence of P.W.2/Shivakumar and P.W.3/Sathish Babu,

    who stated that they had accompanied the respondent
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    No.1/plaintiff three to four times to the house of the

    appellant/defendant No.1 and despite of which, the sale

    transaction did not fructify. In addition, it is contended that

    the ATS was not validly terminated. It is not disputed that

    the appellant/defendant No.1 violated the interim order

    dated 03.08.2005 and alienated the suit schedule property in

    favour respondent No.6/defendant No.6. This is also

    admitted by appellant/defendant No.1 in the cross-

    examination dated 07.01.2012 that on 01.09.2006, the

    property was sold as per Ex.P25 and as on that date, there

    was an injunction in force. Since the appellant/defendant

    No.1 was in violation of the injunction order passed by the

    learned Trial Court on 03.08.2005, no relief could be granted

    to the appellant/defendant No.1 nor to the subsequent

    purchaser, defendant No.6 / respondent No.6.

    (b) The Undisputed Facts:

    13. The undisputed facts in the present case are that an

    Agreement to Sell dated 24.12.2004 was entered into

    between the parties. The ATS provided for total sale

    consideration of Rs.48,39,375/-. It is not disputed that the

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    after the advance payment of Rs.5,00,001/-, a further

    amount of Rs.20,00,000/- was paid by the purchaser to the

    seller on 24.02.2005. Thus, an advance sale consideration of

    more than 50% being Rs.25,00,001/- was paid. The ATS set

    out that the payment should be made within five months by

    31.05.2005. The Legal Notice dated 20.05.2005 (Ex.P-3) was

    sent on behalf of the respondent No.1/plaintiff to the

    appellant/defendant No.1 and respondent Nos.2 to 5 stating

    that the balance sale consideration of Rs.23,39,375/- was

    available with the respondent No.1/plaintiff and that the

    appellant/defendant No.1 is avoiding execution of the sale

    deed. It further sets out that on 16.05.2005, the respondent

    No.1/plaintiff had come to meet the appellant/defendant

    No.1 with the balance sale consideration along with

    Sri. B.V. Pattabhiramaiah, the first witness to the ATS and

    Sri. Jayaprakash and Sri.Y.B. Shamanna and that the

    appellant/defendant No.1 avoided meeting the respondent

    No.1/plaintiff. The Legal Notice (Ex.P3) further called upon

    the appellant/defendant No.1 to execute the registered sale

    deed by receiving balance sale consideration, on or before,

    31.05.2005.

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    13.1 The Legal Notice was replied to on behalf of the

    appellant/defendant No.1 on 14.06.2005 (Ex.P4) denying the

    contents of the notice sent by the respondent No.1/plaintiff.

    The reply notice also further instructed respondent

    No.1/plaintiff to be ready to come with the balance amount

    and that the sale deed be executed after the 16th of this

    month i.e. 16th of June 2005. In addition, it states that the

    appellant/defendant No.1 is ready to execute the sale deed

    after receiving the balance amount of Rs.23,39,395/- and

    also Rs.2,00,000/- for 0-11 guntas kharab land. The relevant

    extract is below:

    “2. My client further instruct that the said property being a
    self acquired property my client always ready to execute the
    sale deed to complete my client’s part performance of the
    contract and to receive the sale consideration. Therefore,
    direct you client to come with a balance amount after
    16th of this month by fixing the specific date to take
    the sale deed and my client is ready to execute the
    sale deed after payment of the balance sale
    consideration of Rs.23,39,395/- and also 0-11 guntas
    kharab amount to Rs.2,00,000/- as agreed by your
    client.

    Therefore, please advice your client to get the sale deed by
    fixing the specific date after the 16th of this month and
    my client will ready to execute the sale deed. This is for
    your information.”

    [Emphasis Supplied]

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    13.2 Thus an extra demand was made by the

    appellant/defendant No.1. This notice was followed by

    rejoinder notices (Ex.P6) sent on behalf of respondent

    No.1/plaintiff and (Ex.P7) sent as its reply by

    appellant/defendant No.1.

    14. The principal contention of the respondent

    No.1/plaintiff in the Legal Notice and Rejoinder Notice was

    that the sale deed would need to be executed not only by the

    appellant/defendant No.1 but also by his son and daughters,

    as was agreed to and followed in the ATS. Also the time for

    performance of the contract was extended by the

    appellant/defendant No.1 from 31.05.2005 to at least a

    month thereafter, since the date for execution of sale deed

    as stated in the Reply Notice was extended to one month

    from 16.06.2005. The respondent No.1/plaintiff also set out

    that there was no agreement to pay Rs.2,00,000/- extra for

    the kharab land.

    14.1 Since the sale deed was not executed, respondent

    No.1/plaintiff filed a suit on 23.05.2005. The learned Trial

    Court while issuing notice granted an ad-interim stay from

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    alienating, transferring the suit schedule property. The

    appellant/defendant No.1 and respondent Nos.2 to 5 were

    present/represented before the Trial Court on the next date,

    i.e., 19.11.2005 and continued to appear thereafter. Thus

    the interim order was duly served.

    14.2 Despite the pendency of the interim order, on

    01.09.2006, the appellant/defendant No.1 along with

    respondent Nos.2 and 3 executed the sale deed (Ex.P25)

    selling the suit schedule property in favour of the respondent

    No.6/defendant No.6. In addition, on a day prior, on

    30.08.2006, a release deed (Ex.P26) was executed by Smt.

    S.R. Sujatha and Smt. S.R. Renuka, who are the daughters

    of appellant/defendant No.1 and are respondent Nos.4 and 5

    in these appeals, in favour of the appellant/defendant No.1.

    14.3 A Written Statement was filed by appellant/

    defendant No.1 wherein the ATS was admitted as well as the

    advance consideration of Rs.25,00,000/-. It was stated

    therein that since the respondent No.1/plaintiff failed to pay

    the balance sale consideration within five months, the ATS

    came to an end on account of the breach by the respondent

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    No.1/plaintiff. It was also admitted that the

    appellant/defendant No.1 asked for additional amount of

    Rs.2,00,000/- in the Written Statement for the kharab land,

    even though it was not reflected in the ATS.

    14.4 I.A.No.2 was filed by respondent No.1/plaintiff seeking

    impleadment of the respondent No.6/defendant No.6 as the

    subsequent purchaser of the suit schedule property. By the

    order of the learned Trial Court dated 01.12.2006, the

    respondent No.6/defendant No.6 was impleaded as a

    necessary party to the suit. The respondent No.6/defendant

    No.6 also filed his written statement on 02.08.2007.

    (c) The Other Agreement To Sell:

    15. An examination of the Written Statement dated

    02.08.2007 which has been filed by respondent

    No.6/defendant No.6, the subsequent purchaser, shows that

    it is the case of respondent No.6/defendant No.6 that the

    appellant/defendant No.1 had prior to executing the ATS with

    respondent No.1/plaintiff, entered into an Agreement to Sell

    dated 04.11.2004 with respondent No.6/defendant No.6 for

    purchasing the suit schedule property for Rs.1,86,90,000/-

    (hereinafter referred to as the ‘Earlier ATS’). In addition, it is
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    averred that on that date, respondent No.6/defendant No.6

    had paid a sum of Rs.10,00,000/- by way of cash and

    appellant/defendant No.1 had handed over possession of the

    suit schedule properties along with all original documents in

    respect thereof to respondent No.6/defendant No.6. It is

    stated that thereafter that respondent No.6/defendant No.6

    has been in possession and enjoyment of the suit schedule

    property and periodically made payments over the period of

    time till the sale deed finally got executed on 01.09.2006.

    The relevant extract of the Written Statement filed by

    respondent No.6/Defendant No.6 is set out below:

    ““` “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ` ““` “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ` ““` “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ` ““` “` “` ““ “` “` ““ “` “` ““ “` “` “`
    ““` “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ` ““` “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ` ““` “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` “` ““ “` ““ “` “` ““ “` “` ““ “` “` “

    “3. The averments in Para 2, 3, 4, 5 & 6 not being within
    the knowledge of this defendant are denied, putting the
    plaintiff to strict proof to the same.

    WITHOUT PREJUDICE to what is stated above, this
    defendant begs to submit as follows:

    a) It is submitted that this defendant had earlier
    entered into an Agreement to Sell dated 04.11.2004
    with the 1st defendant herein to purchase the suit
    schedule property for a valuable consideration of
    Rs.1,86,90,000/-. As on date of entering into Agreement
    to Sell as aforesaid, this defendant had paid a sum of
    Rs.10,00,000/- by way of cash and the 1st defendant
    had handed over possession of the schedule property
    along with all the original documents to this
    defendant. Thereafter, this defendant has been in
    possession and enjoyment of the suit schedule
    property and has made periodically payments over a
    period of time and finally got the sale deed executed by the
    1st defendant in his favour on 01.09.2006. This defendant
    is not aware of the alleged agreement between the

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    plaintiff and the 1st defendant. In any case, since the
    Agreement to Sell between this defendant and the
    1stdefendant was earlier in point in time, the alleged
    subsequent agreement dated 24.12.2004 between
    the plaintiff and the 1st defendant, which is sought to
    be enforced in this suit, is null and void and
    unenforceable in law. This defendant is a bonafide
    purchaser for value in good faith and has perfected his title
    subsequent to the registration of the sale deed and has been
    in exclusive possession and enjoyment of the same by
    exercising all rights of ownership. Under the circumstances,
    the contention of the plaintiff that he is entitled for the relief
    of specific performance of the Agreement to Sell entered
    into between himself and the 1st defendant is wholly
    untenable. The plaintiff is not entitled to any discretionary
    relief at the hands of this Hon’ble Court and as such the suit
    is liable to be dismissed.

    [Emphasis Supplied]

    15.1 The respondent No.6/defendant No.6 further states that

    he has paid the entire sale consideration and that the

    registered sale deed dated 01.09.2006 (Ex.P25) was

    executed by the appellant/defendant No.1 along with his two

    sons respondent Nos.2 and 5 in favour of respondent

    No.6/defendant No.6. The relevant extract of the

    examination in chief by respondent No.6/defendant No.6

    dated 09.02.2012 is set out below:

    “2. I state that the 1st defendant is the absolute
    owner of the suit schedule property measuring 6
    Acres 27 guntas in Sy.No.87 of Bethanagere
    Village, Dasanapura Hobli, Nelamangala Talk, and
    he had executed an Agreement to Sell in my favour
    on 4th November, 2004 agreeing to sell the said
    suit schedule property for a valuable consideration
    of Rs.1,86,90,000/- and as on the date of entering
    into the Agreement to Sell, as aforesaid, I had paid

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    a sum of Rs.10 Lakh by way of cash as the 1st
    defendant had requested me to pay the entire sum
    of Rs.10 Lakh by way of cash. Accordingly, I have
    paid the said amount by way of cash.

    3. I further state that as per the said Agreement, I
    was required to pay the balance sale consideration
    of Rs.1,76,90,000/- as on the date of execution
    and registration of the registered Sale Deed in my
    favour conveying the suit schedule property.

    4. I further state that the 1st defendant had
    received a further sum at the rate of Rs.10 Lakh
    each on the dates i.e., on 10.11.2004, 16.11.2004,
    22.11.2004, 27.11.2004, 04.12.2004, 11.12.2004
    and 18.12.2004 and another sum of
    Rs.13,50,000/- on 22.12.2004 and thus, in all,
    subsequent to the execution of the Sale
    Agreement, I have paid a total sum of
    Rs.93,50,000/- including Rs.10 Lakh paid on
    04.11.2004 and rest of the amount was paid by
    way of Demand Draft and Cheque as stated in the
    Sale Deed dated 01.09.2006. Thus, in all, I have
    paid the entire sale consideration and I have
    obtained a registered sale deed in my favour. The
    1st defendant had encashed all the amounts paid
    by way of cheques except the last two cheques
    dated 21.10.2006 and 01.11.2006 bearing Nos.
    380520 and 380521 respectively, both drawn on
    Syndicate Bank, Jayanagar III Block, Bangalore –

    11. The said cheques were not encashed since I
    had issued a letter to the bank not to honour these
    cheques as the dispute had commenced and the
    above suit was filed in the year 2005.

    xxx xxx xxx

    6. I further state that I am the bonafide purchaser
    of the suit schedule property for a sale
    consideration of Rs.1,86,90,000/- and as on the
    date of execution of the Sale Agreement, there
    was no impediment and there is no agreement
    with anybody except me. Subsequently, the 1st
    defendant along with his two sons, had executed
    a registered sale deed in my favour which is
    marked as Ex.P25.

    [Emphasis Supplied]

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    16. In essence, respondent No.6/defendant No.6 has

    contended that Ex.P1, the ATS is a created document and the

    appellant/defendant No.1 and respondent No.1/plaintiff have

    colluded to defraud the respondent No.6/defendant No.6.

    16.1 It is also the case of respondent No.6/defendant No.6

    that the Agreement to Sell executed on 24.12.2004 between

    the respondent No.1/plaintiff and appellant/ defendant No.1

    is null and void and unenforceable in law since prior to that

    day, the suit schedule property had already been transferred

    to respondent No.6/defendant No.6.

    17. In support of his contentions, respondent No.6/defendant

    No.6 has also produced evidence of one K. Amarnath Singh

    as D.W.3 who has stated that the respondent No.6/defendant

    No.6 has paid a total of Rs.10,00,000/- in his presence and

    subsequently paid Rs.93.50 lakhs as advance sale

    consideration and that all original documents pertaining to

    suit schedule property have been delivered to respondent

    No.6/defendant No.6 after the Earlier ATS was executed. The

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    relevant extract of the examination in chief of D.W.3 is set

    out below:

    “1. I state that I know both the 1st Defendant as well
    as the 6th Defendant. The 1st Defendant being the
    owner of the suit schedule property, has executed an
    Agreement to Sell on 04.11.2004 agreeing to convey
    the same in favour of the 6th Defendant.

    2. I state that under the agreement, the 6th Defendant
    had paid a sum of Rs.10.00 Lakh in my presence and
    subsequently also, the 1st Defendant has received
    further advance sale consideration from the 6th
    Defendant and I am witnesses to all the amounts paid
    subsequent to the agreement dated 04.11.2004 and
    in all, the 6th Defendant has paid a sum of
    Rs.93,50,000/- as advance sale consideration.

    3. I further state that, pursuant to the agreement dated
    04.11.2004, the 1st Defendant has delivered all the
    original documents in favour of the 6th defendant
    pertaining to the suit schedule property.”

    [Emphasis Supplied]

    18. A detailed cross-examination was undertaken of said

    D.W.3 by the counsel for the respondent No.1/plaintiff

    wherein D.W.3 confirmed that he was a real estate agent and

    broker and knew that both appellant/defendant No.1 and

    respondent No.6/defendant No.6 are from Bethanagare

    village. Neither the cross-examination of DW-2 nor DW-3

    brought out anything to discredit their contentions.

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    (d) The Evidence:

    19. This Court has also examined the deposition of the

    appellant/defendant No.1 [D.W.1]. The defendant No.1

    [D.W.1] has not denied executing the Agreement to Sell on

    24.12.2004. He has further stated in his affidavit in evidence

    dated 24.09.2011 that he executed an Agreement to Sell for

    a total sale consideration of Rs.48,39,375/- to meet the legal

    necessities for his families and that defendant Nos.2 to 5 are

    formal parties and have no right or interest over the suit

    schedule property.D.W.1 further in his evidence states that

    in December 2004, the value of one acre of land in the

    vicinity was around Rs.35 to Rs.40 lakhs, and as on the date

    of the giving evidence, the value of one acre of land in the

    vicinity of the suit schedule property was worth more than

    about Rs.80 Lakhs. However, he had agreed to sell the

    property at Rs.7.25 lakhs per acre so that he could purchase

    an alternative property for the benefit of the family. It is

    contended that respondent No.1/plaintiff was to pay entire

    sale consideration within five months, so he could purchase

    an alternate property. The D.W.1 has also admitted receiving

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    entire amount of Rs.25,00,000/-, but states that since the

    respondent No.1/plaintiff failed to complete the transaction

    within five months and there was a default, the ATS came to

    an end on 23.05.2005 or on 16.06.2005 and thus, the

    forfeiture clause was invoked by appellant/defendant No.1

    and entire amount was forfeited.

    19.1 The appellant/defendant No.1 then contradicts himself

    by stating that in July 2005, he had offered himself to return

    the money received as advance and that he has no intention

    to cheat anybody.

    20. This Court has also reviewed the cross-examination of

    appellant/defendant No.1 which commenced on 15.11.2011.

    Appellant/defendant No.1 admits to the execution of the ATS.

    He further admits to the fact that the ATS was executed by

    him and his children as his family was need of money to

    discharge family necessities and discharge family debts. The

    appellant/defendant No.1 does not dispute that sale deed

    executed with respondent No.6/defendant No.6 is executed

    by defendant No.1 as well as his two sons and a release deed

    is executed on 30.08.2006 by his two daughters to facilitate

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    the sale. He further avers that after the Release Deed

    (Ex.P26) is executed on 30.08.2006, the sale deed is

    executed thereafter on 01.09.2006.

    20.1 However, in his cross-examination, appellant/

    defendant No.1 initially denies executing any Agreement to

    Sell on 04.11.2004 in favour of respondent No.6/defendant

    No.6. However thereafter, the appellant/defendant No.1

    admits in his evidence that the sale deed dated 01.09.2006

    was executed with respondent No.6/defendant No.6 in

    violation of the orders passed by the Court. Subsequently,

    when confronted with the Earlier ATS, he admits his

    signatures on the earlier agreement as well. The

    appellant/defendant No.1 also deposes that respondent

    No.6/defendant No.6 was informed about the Injunction

    Orders passed by the Court. The relevant extract of the

    cross-examination of D.W.1 undertaken on 04.01.2012 by

    the counsel for the plaintiff/respondent No.1 is set out below:

    “I am having four children viz, Sujatha, Mahesha Dayanand
    and Renukadevi who are the defendants 2 to 5. My elder
    daughter Sujatha/defendant no.3 is in America. She went
    to. America during the course of execution of the Agreement
    to Sell-in favour of the plaintiff. It is true to suggest that
    the Agreement to Sell was got executed by me and
    my children in favour of the plaintiff.

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    On the date of the execution of Ex.P.1, we have received
    the advance sale consideration amount in part of Rs.5 lakhs.
    Rs.7,25,000/- was decided to be payable towards the sale
    consideration amount for 1 acre of land. It was decided for
    a total sale consideration amount for 6 acres of land to an
    extent of Rs.48,39,375/-. It is true to suggest that five
    months time was stipulated for due execution of the
    registered sale deed from the date of Agreement to
    Sell. That means, on or before 31.05.2005.

    xxx xxx xxx
    I have not executed any Agreement to Sell except
    executing in favour of the plaintiff as per Ex.P.1.

    xxx xxx xxx
    I cannot say the marked value prevailing to 1 acre of land
    in the year 2004. I do not know the market value that is
    fixed by the Government as per the Notification of July 2004
    of Rs.3,50,000/-. I do not know that the plaintiff could have
    fetched for a lesser value for the land in and around the
    schedule property during that period of time.

    xxx xxx xxx

    The plaintiff never approached me prior to sending Legal
    Notice. The mediator Puttaswamaiah also never approached
    me requesting to receive the balance sale consideration
    amount and to conclude the contract.

    xxx xxx xxx
    I have executed the sale deed in favour of the 6th
    defendant as per Ex.P.25. My sons have put their
    signatures along with me to Ex.P.25.I have not
    disclosed in my written statement about the
    alienation made in favour of the 6th defendant under
    Ex.P.25. Except executing Ex.P.25, No other
    documents are executed in favour of the 6th
    defendant. Specifically not executed any agreement
    in favour of the 6th defendant. I have not executed
    any Agreement to Sell deed 04.11.2004 in favour of
    the 6th defendant. I have not executed any
    Agreement to Sell deed 04.11.2004 in favour of the
    6th defendant. It is true to suggest that prior to two
    days of Ex.P.25 i.e. on 30.08.2006 my daughters have
    got executed the release deed relinquishing their
    rights in the schedule property in my favour. It is true
    to suggest that after relinquishing their rights by my

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    daughters, myself and my sons have got executed the
    regular registered sale deed in favour of 6th
    defendant. I have not produced the relinquishment deed
    and I will produce the same. Ex.P.26 is confronted. He
    admits that it is the relinquishment deed which has
    been executed by my daughters.

    xxx xxx xxx

    The pendency of the suit was informed to the 6th
    defendant as on the date of the execution of regular
    registered sale deed. It was also further informed about
    the sale agreement executed in between me and the
    plaintiff and so also the exchange of Legal Notices and
    the pendency of the case and interim order of
    injunction which was in force against me. It is true
    to suggest that in violation to the orders of this court,
    I have entered into the sale transaction with the 6th
    defendant. It is true to suggest that under Ex.P.25, I
    have got alienated the schedule property for a total
    sale consideration amount of Rs.1,86,90,000/-.

    xxx xxx xxx

    It is not true to suggest that I have received the entire sale
    consideration amount as recited under Ex.P.25. It is not true
    to suggest that myself and defendant no.6 have colluded
    together and by hiking the value for the plaint schedule
    property, got concocted the created Ex.P.25. I do not know
    that the market value for 1 acre of land at Bethanagere as
    notified by the Government is to an extent of Rs.9 lakhs
    from 2005 to 2007. I do not know whether the 6th
    defendant knows about the paper publication. It is not true
    to suggest that I colluding with the 6th defendant have
    cheated the plaintiff in getting the sale deed executed in his
    favour. Witness volunteers that only D.6 has cheated the
    plaintiff, but, not by me. I have filed the complaint to the
    Police against the 6th defendant. But, so far I have not
    produced any documents.”

    [Emphasis Supplied]

    20.2 In his cross-examination conducted on 07.01.2012

    D.W.1 admits that all original documents qua suit schedule

    property were handed over to defendant No.6/respondent

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    No.6 and that a board as installed by him on the suit schedule

    property.

    “….All original documents pertaining to the schedule
    property were delivered to the 6th defendant. It is not
    true to suggest that much before duly executing the sale
    agreement in favour of the 6th defendant and so also
    received the balance partial sale consideration amount. It
    is not true to suggest that soon after my executing
    the agreement of sale in favour of the 6th defendant,
    he has installed the Board in the said property. The
    photographs are confronted. But he denies the
    same.”

    20.3 However, when on 21.02.2012, during his cross-

    examination, the Earlier ATS dated 04.11.2004, is shown to

    appellant/defendant No.1 (confronted) and he has admitted

    to his signatures and the same was marked as Ex.D1. The

    relevant extract is set out below:

    “The sale agreement dated 04.11.2004 is confronted.
    He admits his signature at all the places to the
    document. Hence, the same is marked as Ex.D.1 and
    signature to each page is marked as Ex.D.1(a).”

    (e) The Existence of Two Agreements:

    21. What is thus apparent from the evidence is that the two

    Agreements to Sell were executed by appellant/defendant

    No.1. The first being Ex.D1 on 04.11.2004 with respondent

    No.6/defendant No.6. The second being Ex.P1 on 24.12.2004

    with the respondent No.1/plaintiff. Thus, within less than two

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    months, two different documents were executed by

    appellant/defendant No.1 with different purchasers for the

    same suit schedule property. The appellant/defendant No.1

    took amounts from both these parties for the sale of the

    same suit schedule property, yet at different times.

    21.1 Both these agreements were however for varying

    consideration, while one sale consideration was Rs.7.25 lakhs

    per Acre (Ex.P1). The sale consideration for the other one

    was Rs.28 lakhs per acre (Ex.D1), even though the

    Agreement to Sell was executed earlier in November 2004.

    The appellant/defendant No.1 also admitted to handing over

    all original documents qua the suit schedule property to

    respondent No.6/defendant No.6. The Earlier ATS set out

    that at the time of its execution, the original documents qua

    the suit schedule property were handed over to respondent

    No.6/defendant No.6. In addition, the relevant extract of the

    translated copy of the Earlier ATS is below:

    “Deed of sale of real estate

    Dated the fourth day of November, two thousand and
    four (04.11.2004) Bengaluru-560027, Mission Road,
    Kasturi Complex, 2nd Floor, No. 76, Care/Op M. Arun
    Ponnappa, son of Venkataswamy, aged about 43 years,
    to you (also the buyer)-

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    The following is the deed of sale of the immovable property
    agreed to and signed by me, Shri S.R. Rajaiah (Seller),
    aged about 75 years, son of the late Revanna, residing at
    house number 574, 2nd cross, Sri Jayadeva Hostel Road,
    Nelamangala Town, Bangalore Rural District-562123:

    Further, the property described in the schedule hereunder
    is 6 acres 27 guntas and 11 guntas of Kharab land
    situated in Survey No. 87 of Bettanagere village,
    Dasanapura Hobli, Bangalore North Taluk, dated
    21.10.1971 in the office of the Sub-Registrar,
    Nelamangala Taluk, Nelamangala, as number
    2217/1971-72 in Book 1, Volume 1231, Pages 127 to 128.

    xxx xxx xxx

    I hereby agree to sell the Scheduled Property, which is
    subject to my title and ownership, to you at the above
    stated price, as I urgently require the necessary
    funds for the payment of the loan I have taken out
    today and for other purposes and household needs.

    The said property is valued at Rs. 28,00,000/-
    (Rupees twenty-eight lakhs only) per acre, totaling 6
    acres 27 guntas of land, total purchase price is
    Rs.1,86,90,000/-(Rupees one crore eighty-six lakhs
    ninety thousand)

    I have received from you in the presence of the following
    witnesses this day a sum of Rs.10,00,000/-(Rupees
    Ten Lakhs Only) as an advance payment towards the full
    amount of the said property, agreeing to give it to you at a
    clean price.

    The outstanding amount of Rs.1,76,90,000/-(Rupees
    One Crore Seventy Six Lakh Ninety Thousand Only)
    for the said property shall be paid within a period of
    eleven (11) months from today and the said property
    shall be registered. The expenses of providing all the
    documents required for registration of the said property
    shall be borne by us, the seller. In case of any delay in
    registration within the above time limit due to any reason,
    I agree to extend the registration time.

    I undertake to register the proper purchase deed for the
    Scheduled Property in your name or in the name of the
    person you request at the relevant office upon payment of

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    the balance of the purchase price. All expenses incurred in
    registering the Scheduled Property, such as the purchase
    deed, stamp paper costs, registration fees, etc., shall be
    borne by you, the purchaser.

    I have made this advance purchase agreement to you today
    regarding the Scheduled Property and have not made any
    purchase, donation, support, transfer, etc. to anyone else
    in the past. For further verification of this agreement,
    my sons 1st S.R. Mahesh, aged about 42 years, 2nd
    S.R. Dayanand, aged about 38 years, have also
    agreed and affixed their consent.

    I have placed in your possession all the original documents
    in my possession relating to the said property on the
    day of this agreement. The said property having come to
    me in the above manner is not subject to any kind of
    dispute. In case any further advance is received within the
    validity of this agreement, I am bound to write and sign the
    word “Sharah” on the back of the said agreement.

    I have not mortgaged the said property to any
    organization, bank, society, etc. and have not made
    the said property subject to any court decree,
    attachment, etc.

    There are no disputes or rights of heirs regarding the
    Scheduled Property. If any disputes arise, I agree to
    resolve them myself.

    I have signed a pre-agreement for the purchase of the
    immovable property, which I have voluntarily and
    willingly agreed to write, stating that I will be
    responsible for any losses, losses and expenses
    incurred as a result of my failure to do so.

    Scheduled Asset Details

    The land measuring 6 acres 27 guntas and 0-11
    guntas of the adjoining land in Survey No.87 of
    Bettanagere village, Dasanapura Hobli, Bangalore
    North Taluk is hereby deeded as-

    To the east: Muniyappa’s land and Jakkojirao’s land.

       to the west :     Siddappa's land
       to the north:     Ramakrishna Rao's land
       to the south:     Land of Chikkabaila and others.
    
    
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    The 6 acres 27 guntas of land subject to the above lease
    and the 0-11 guntas of the land belonging to the said land
    are also subject to this advance contract for the pure
    purchase of this immovable property.”

    [Emphasis Supplied]

    22. The Written Statement and evidence led by the

    appellant/defendant No.1 in essence only refers to the

    Agreement to Sell with respondent No.1/plaintiff and there is

    no reference made to Earlier Agreement to Sell entered into

    with respondent No.6/defendant No.6. No explanation is also

    given as to why there are two Agreements for the sale of the

    same property with two different parties. Clearly, thus, the

    appellant/defendant No.1’s intentions were completely

    malafide from the very beginning.

    23. The appellant/defendant No.1 also admits to receiving

    money from both respondent No.1/plaintiff and respondent

    No.6/defendant No.6, the subsequent purchaser with respect

    to the sale of the suit schedule property. In addition and in

    defiance of the orders passed by the learned Trial Court, the

    appellant/defendant No.1 executed a sale deed in favour of

    the respondent No.6/defendant No.6 on 01.09.2006.

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    24. The entire emphasis of the arguments of the

    appellant/defendant No.1 before this Court was that

    respondent No.1/plaintiff was not ready with the balance

    amount and thus the ATS was cancelled and subsequently,

    Sale Deed was executed with respondent No.6/defendant

    No.6, thus Impugned Judgment and Decree could not have

    been passed. However, there is absolutely no explanation

    given by the appellant/defendant No.1 as to reason for his

    executing two Agreements to Sell within two months and

    both for differing considerations for the suit schedule

    property. Both agreements cite family necessity and urgent

    requirement of funds. This conduct of the

    appellant/defendant No.1 speaks volumes of his malafide

    intentions.

    25. An additional issue was framed by the learned Trial

    Court as to whether the respondent No.6/defendant No.6

    proved that he is the bonafide purchaser of the suit schedule

    property. The learned Trial Court although notices that the

    appellant/D.W.1 in his cross-examination states that he has

    not executed any Agreement to Sell in favour of respondent

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    No.6/defendant No.6, however, when confronted with Ex.D1,

    the Agreement to Sell dated 04.11.2004, D.W.1 has admitted

    his signature, the learned Trial Court goes on to hold that

    merely because in the cross-examination, the signatures on

    the Agreement to Sell have been admitted, does not mean

    that the contents of this agreement are proved and gives a

    finding that the Earlier ATS was a created document. The

    relevant extract of the Impugned Judgment in this regard is

    below:

    “The first defendant no where in his written
    statement has stated that he has executed an
    agreement to sell on 4.11.2004 in favour of the 6th
    defendant. In the chief examination and also at the
    time of cross-examination made by the plaintiff to
    D.W.1 also, he did not say that he has executed an
    Agreement to Sell on 4.11.2004 in favour of the 6th
    defendant for consideration of Rs.1,86,00,000/- and
    he received Rs.10 lakhs on that day, etc.
    The 6th defendant in his written statement has taken the
    contention that he had entered into an Agreement to Sell
    with the first defendant on 4.11.2004 for consideration
    amount of Rs.1,86,00,000/- and out of it Rs.10 lakhs had
    been paid to the first defendant. If the first defendant
    had entered into an Agreement to Sell with the 6th
    defendant on 4.11.2004, nothing is prevented the
    first defendant to take the same contention in his
    written statement. It is a material fact.

    xxx xxx xxx
    …On the other hand in his cross-examination made
    by the counsel for the plaintiff DW1 has clearly stated
    that, he did not execute any Agreement to Sell in
    favour of the 6th defendant. But the counsel for the
    6th defendant has confronted the alleged Agreement
    to Sell dated 4.11.2004 to DW1, the DW1 has

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    admitted his signature on Ex.D1 Agreement to Sell.
    Under such circumstances, merely because in the
    cross-examination DW1 has admitted his signature
    on the alleged Agreement to Sell dated 4.11.2004, it
    does not mean that, the contents of the said alleged
    Agreement to Sell are proved……”

    [Emphasis Supplied]

    26. The learned Trial Court found the earlier ATS was not

    proved. In any event, the appellant/defendant No.1 has

    denied this document but later admits his signature. Clearly

    thus that the appellant/defendant No.1 despite entering into

    an ATS with the respondent No.1/plaintiff for the sale of the

    suit schedule property, had in fact no intention to go through

    with the sale at all as he had already agreed to sell the

    property thereafter to respondent No.6/defendant No.6 and

    that too at more than three times the price agreed with

    respondent No.1/plaintiff and back dated an Agreement to

    Sell to overcome the ATS with respondent No.1/plaintiff.

    (f) The HMT Employees Housing Building Co-Operative
    Society Suit:

    27. The Impugned Judgment also references the plaint filed

    by HMT Employees Housing Building Co-operative Society

    [hereinafter referred to as ‘HMT Society’] against respondent

    No.6/defendant No.6, being O.S.No.1762/2009 in the Court

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    of Civil Judge (Sr. Dvn.) Bangalore, captioned HMT

    Employees Housing Building Co-operative Society Vs.

    Sri. Balaji (Ex.P35), as well as the sale deed executed on

    01.09.2006 (Ex.P38) to give a finding that the payments

    mentioned in the HMT Society plaint refers to a transaction

    between HMT Society and the respondent No.6/defendant

    No.6, and reference to the payments made by the HMT

    Society to respondent No.6 for purchases of land in the

    Bethanagere Village, and the sale deed [Ex.P38] are one and

    the same. It also finds that Ex.P35 discloses that payment in

    cash is made to respondent No.6/defendant No.6 in the year

    2004. Learned Trial Court then finds that that payment is

    made through demand drafts and demand drafts at Ex.P35

    and Ex.38 are one and the same. Thus, the learned Trial

    Court reaches the conclusion that appellant/defendant Nos.1

    and 6 have colluded with each other against respondent

    No.1/plaintiff. The relevant extract of the Impugned

    Judgment is set out below:

    “On perusal of Ex.P.35, it discloses that one HMT
    Employees House Building Co-operative Society Ltd.
    had filed the suit against the present 6th defendant
    for specific performance of Agreement to Sell dated

    2.9.2006 and alternatively asked the relief of refund
    of the amount of Rs.1,86,90,000/- and the said suit
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    was filed for the property bearing survey No.87
    measuring to an extent of 6 acres 27 guntas.

    xxx xxx xxx
    In Ex.P.37, plaint in O.S. No. 1762/2009, it is
    mentioned that the particulars of payment made by
    the present defendant to the said HMT Employees
    House Building Co-operative Society Ltd. relating to
    the said sale transaction. If the said payment mentioned
    in Ex.P.35 is compared with the payment made by the
    defendant No.6 to the first defendant in respect of the
    alleged sale transaction dated 1.9.2006, it is very
    clear that the payment mentioned in Ex.P.35 and P.38
    are one and the same. In Ex.P.37, sale deed it is
    mentioned that the said sale deed has been executed
    on 1.9.2006. But, Ex.P.38 discloses that the alleged
    payment in cash is made in the year 2004. It is also
    discloses that the payment is also made through
    demand drafts and the said demand drafts number has been
    shown in Ex.P.35 and P.38 are one and the same. It is one
    of the strongest circumstances to hold that the first
    defendant and the 6th defendant are colluding with
    each other have created documents.”

    [Emphasis Supplied]

    27.1 The learned Trial Court also gives a finding that the

    stamp paper on which of Ex.D1 is executed is not stamp

    paper purchased either by defendant No.1 or defendant No.6

    and relies on the judgment of the Supreme Court in H.

    Siddiqui (Dead) by LRs v. A. Ramalingam1 to hold that

    the admission of the signatures on Ex.D1 does not mean

    admission of contents of the document and therefore, the

    document, Ex.D1 to Ex.D9 and Ex.P25 are created

    1
    (2011) 4 SCC 240 : AIR 2011 SCW 1886

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    documents and directs that the respondent No.1/plaintiff is

    at liberty to take action against the fabrication of these

    documents.

    (g) Violation of Interim Order:

    28. So far as concerns the violation of the order dated

    03.08.2005, the learned Trial Court has found that there is a

    clear admission of the appellant/defendant No.1 that he has

    executed Ex.P25, the sale deed in favour of respondent

    No.6/defendant No.6. He has also admitted to the execution

    of relinquishment deed dated 30.08.2006 (Ex.P26) by his

    daughters in his favour. It is not disputed by any party that

    the interim order dated 03.08.2005 was extended from time

    to time and on the day the sale deed and the relinquishment

    deeds were executed, the interim order was in force. Thus,

    the learned Trial Court has held that the appellant/

    defendant No.1 has deliberately violated the orders of this

    Court and that the immovable property of

    appellant/defendant No.1 be attached for such violation.

    29. The appellant/defendant No.1 has in MFA No.4414 of

    2015 challenged this order stating that no show cause Notice

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    has been issued by the learned Trial Court prior to passing

    the order and no separate evidence was adduced. Thus, it is

    contended that the Impugned Order cannot be sustained.

    30. The provisions of Order 39 Rule 2A of the CPC provide

    for consequence of disobedience or breach of injunction in

    the following manner:

    Order XXXIX Rule 2A CPC

    “2A. Consequence of disobedience or breach of injunction.–

    (1) In the case of disobedience of any injunction
    granted or other order made under rule 1 or rule 2 or
    breach of any of the terms on which the injunction was
    granted or the order made, the Court granting the
    injunction or making the order, or any Court to which
    the suit or proceeding is transferred, may order the
    property of the person guilty of such disobedience or
    breach to be attached, and may also order such
    person to be detained in the civil prison for a term not
    exceeding three months, unless in the meantime the
    Court directs his release.

    (2) No attachment made under this rule shall remain in
    force for more than one year, at the end of which time, if
    the disobedience or breach continues, the property attached
    may be sold and out of the proceeds the Court may award
    such compensation as it thinks fit to the injured party and
    shall pay the balance, if any, to the party entitled thereto.”

    [Emphasis Supplied]

    30.1 The Supreme Court in the judgment of Food Corpn. of

    India v. Sukh Deo Prasad2 has explained this provision as

    2(2009) 5 SCC 665S

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    requiring clear, unambiguous and willful disobedience of an

    order of temporary injunction granted under Order XXXIX

    Rules 1 or 2 of the CPC, and that such power cannot be

    exercised on mere assumptions or inferential reasoning but

    must be founded on cogent material on record. The relevant

    extract is below:

    38. The power exercised by a court under Order 39
    Rule 2-A of the Code is punitive in nature, akin to the
    power to punish for civil contempt under the
    Contempt of Courts Act, 1971. The person who
    complains of disobedience or breach has to clearly
    make out beyond any doubt that there was an
    injunction or order directing the person against
    whom the application is made, to do or desist from
    doing some specific thing or act and that there was
    disobedience or breach of such order. While considering
    an application under Order 39 Rule 2-A, the court cannot
    construe the order in regard to which disobedience/breach
    is alleged, as creating an obligation to do something which
    is not mentioned in the “order”, on surmises, suspicions and
    inferences. The power under Rule 2-A should be exercised
    with great caution and responsibility.”

    [Emphasis Supplied]

    30.2 In addition, in the judgment of Hero Cycles Ltd. v.

    Hero Ecotech Ltd.3 the Supreme Cout has held that in the

    proceedings under Order XXXIX Rule 2A CPC, an inquiry must

    be conducted in accordance with law and both sides must be

    afforded a reasonable opportunity to present their case. The

    relevant extract is below:

    32026 SCC OnLine SC 270

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    “11. In case the applicants who filed the said
    application(s) seek an inquiry into the matter, then
    both sides ought to be granted a reasonable
    opportunity in the inquiry to be conducted in case the
    said inquiry has not yet been completed.”

    [Emphasis Supplied]

    31. This Court is however unable to agree that

    appellant/defendant No.1 did not have notice of these

    proceedings or was unable to present his case. The record

    reflects that the learned Trial Court on 03.08.2005 granted

    an ex parte ad interim injunction restraining the defendants

    from alienating, encumbering, or altering the suit schedule

    property. The interim order was extended from time to time

    including on 19.11.2005, 17.06.2006, 26.08.2006,

    01.12.2006 and thereafter the appellant/defendant No.1 and

    respondent Nos.2 to 5 were present/represented before the

    Court on all days. Thereafter on 12.09.2006 after impleading

    respondent No.6/defendant No.6, the learned Trial Court

    extended the Interim Order directing respondent

    No.6/defendant No.6 from further encumbrance and

    formation of layouts. The relevant orders are extracted

    below:

    “ORDER DATED 03.08.2005
    Pltf – A.N
    D1 to 5
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    Heard. Perused the records. The plaintiff has filed the suit
    for specific performance of contract. If the defendants are
    allowed to alienate the suit schedule property or creating
    encumbrance over the suit schedule property, the very
    purpose of filing the suit would become infructuous and it
    will lead to multiplicity of proceedings. Hence, the
    defendants are restrained from alienating the suit
    schedule properties or creating or encumbering over
    the suit schedule properties till next date of hearing.
    The plaintiff is directed to comply with the provisions
    of Order 39 Rule 3 CPC.

    Advocate for the plaintiff files a memo to keep the original
    documents in safe custody. In view of the memo Office is
    directed to keep the original documents in safe custody.

    Issue suit summons exparte order on IA No.1 to the
    defendants returnable by 19-11-2005.

    Sd/-

    ORDER DATED 19/11/2005:

    Pltf – A.N.
    D1-5
    SS to D2 Sd in person
    SS to D4
    SS to D1, 3 – 5

    I.A.2 filed. I.O extended till next date. Defendants 1, 2
    called. Defendants 1 and 2 present. Prays time to
    engage counsel and file written statement. Issue suit
    summons to defendant Nos.3 to 5 by RPAD if PF paid. Call
    on 17.06.2006.

    Sd/-

    ORDER DATED 17/06/2006:

    Plft – A.N.
    D1 & 2 in person
    D3 to 5
    SS to D3 to 5
    SS to D3 to 5 by RPAD
    Served in person

    Plaintiffs filed application for extension of I.O.
    Heard. I.O extended till next date of hearing.
    Defendants 3 to 5 appeared in person and prays time to
    engage counsel.

    Sd/-

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    ORDER DATED 26/08/2006

    Pltf – A.N.
    D1 to 5 in person
    D1 to 5 to engage Adv.

    Application filed.

    Interim order is extended till the next date.

    TSR files vakalat for defendant No.1 and WS of
    defendant No.1. Defendant Nos.3 to 5 present in
    person.

    Call on 17.10.2006.

    Sd/-

    ORDER DATED 12/09/2006

    Advocate for plaintiff filed an application U/S 151 of CPC
    along with an affidavit and prays to advance the case from
    17.10.2006 to 08.09.2006.

    Memo with 2 xerox documents filed.

    This case is advanced as per application with notice to other
    side.

    Plaintiff filed IA 2 to implead the proposed defendant
    and IA 3 and 4 under Oder 39 R.1 and 2 against the
    proposed defendant. PF paid. Issue notice of IA 2 and 3
    and 4 to the proposed defendant.

    Call on 17.10.2006.

    Sd/-

    Later, plaintiff filed IA 5 under Order 39 R.1 and 2 of
    CPC
    . Objection to IA 5. Call on 17.10.2006.

    Sd/-

    Later, advocate for plaintiff pressed for passing interim
    order against proposed defendant. The plaintiff
    apprehended that the proposed defendant may
    further alienate the suit property or create
    encumbrance. Under the circumstances, notice of IA 3
    and 4 at the first instance is dispensed with. In order to
    avoid multiplicity of proceedings and to preserve the
    property in trust the proposed defendant is

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    restrained from alienating or creating encumbrance
    over the suit property. The proposed defendant is
    also restrained from changing the nature of the suit
    schedule land or to form a layout. This order will be in
    force till the next date of hearing.

    Plaintiffs shall comply with the provisions of O.39 R.3
    of CPC.

    Issue ex-parte order on IA 3 and notice of IA 2 to the
    proposed defendant.

    Call on 17.10.2006.

    Sd/-

    ORDER DATED 17/10/2006

    Pltf – A.N.
    D1 – T.S.R.
    D3 to 5 – in person
    IA2 Pro.D6

    Objections to IA1,
    Notice to pro.D6 not given.

    Application is filed.

    Interim order is extended till the next date.
    MAP files vakalath for proposed defendant 6.
    Await notice of proposed defendant 7 and objections to
    I.A.2.

    Call on 01.12.2006.

    Sd/-

    ORDER DATED 01/12/2006

    Pltf – A.N.
    D1 – TSR
    D3-5 in person.

    IA 2 Pro.D6 – MAP
    Objections to IA 2
    Objections to IA 1.

    Amendment carried out as per order of the Hon’ble Court
    dated 1.12.2006.

    Application filed.

    Interim order is extended till the next date.
    Objection to I.A.2 not filed.

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    Suit is for specific performance. The proposed defendant is
    a subsequent purchaser of the property in question.

    Hence, the proposed defendant No.6 is necessary and
    proper party to the suit. Hence, I.A.2 is allowed.
    Amendment is carried out.

    To furnish amended plaint, W.S. of defendant 6 – call on
    22.01.2007.

    Sd/-

    [Emphasis Supplied]

    32. It is thus undisputed that the order of Injunction was in

    the knowledge of the Appellant/defendant No.1 and the

    respondent Nos.2 to 5 and yet they proceeded to transfer

    rights in the suit schedule property in favour of defendant

    No.6/respondent No.6. The Appellant/defendant No.1 and

    respondent Nos.2 and 5 executed the sale deed on

    01.09.2006, while the respondent Nos.3 and 4 executed a

    Release deed on 30.08.2006.

    33. Thereafter, I.A.No.5 was filed on 12.09.2006 by the

    appellant/defendant No.1 seeking directions under Order

    XXXIX Rule 2A CPC stating that the suit schedule property

    had been sold despite the pendency of the interim order. The

    learned Trial Court on 12.09.2006 issued notice on the

    application and granted the appellant/defendant No.1 time to

    file his objections. Subsequently on 17.10.2006, the learned

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    counsel for appellant/defendant No.1 and defendant Nos.3 to

    5 were represented/present before the learned Trial Court.

    Clearly thus as is reflected from the order sheet of the

    learned Trial Court, they had notice of the application alleging

    defiance of the orders of the Court and opportunities were

    given for an explanation, appellant/defendant No.1 and

    defendant Nos.2 to 5 chose not to file any reply.

    33.1 In fact, as can be seen above, the appellant/defendant

    No.1 and the respondent Nos.3 to 5 were present before the

    Court on 17.10.2006, despite which neither deemed it

    appropriate to file any objections or explanation. The record

    also reflects that thereafter, the appellant/defendant No.1

    filed several applications and well as objections to the

    applications filed by the respondent No. 1/Plaintiff, however

    no objections were filed by the appellant/defendant No.1 to

    5 to the application under Order 39 Rule 2A of the CPC, nor

    was any explanation provided through the 10 years that the

    matter was pending before the Trial Court.

    33.2. Thus, despite an opportunity being given by the

    Learned Trial Court to the Appellant/defendant No.1 and

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    Respondent Nos.2 to 5, they chose not to give any

    explanation as to the defiance of an injunction order.

    34. In addition and in any event, in the depositions by the

    appellant DW-1, has affirmed and confirmed the execution of

    the Sale deed dated 01.09.2006 despite knowledge of the

    order of Injunction passed by the Learned Trial Court, thus

    no further enquiry was requisite. The relevant extract of the

    cross-examination of opponent/DW.1 is below:

    “Cross-examination dated 07.01.2012 (DW-1)

    I have stated in my examination in chief filed by way
    of affidavit swearing on oath as, I have got executed
    the Agreement to Sell as I was in need of amount to
    meet my family legal necessities and also to
    discharge the family debts.

    I have executed the sale deed in favour of the
    6th defendant as per Ex.P.25. My sons have put their
    signatures along with me to Ex.P.25. I have not
    disclosed in my written statement about ‘the alienation
    made in favour of the 6thdefendant under Ex.P.25. Except
    executing Ex.P.25 no other documents are executed
    in favour of the 6th defendant. Specifically not
    executed any agreement in favour of the 6 defendant.
    I have not executed any Agreement to Sell deed
    04.11.2004 in favour of the 6thdefendant. It is true to
    suggest that prior to two days of Ex.P.25 i.e. on 30.08.2006
    my daughters have got executed the release deed
    relinquishing their rights in the schedule property in my
    favour. It is true to suggest that after relinquishing
    their rights by my daughters, myself and my sons
    have got executed the regular registered sale deed in
    favour of 6thdefendant. I have not produced the
    relinquishment deed and I will produce the same.
    Ex.P.26 is confronted. He admits that it is the
    relinquishment deed which has been executed by my
    daughters. It is true to suggest that it is recited in Ex.P.26
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    to enjoy the joint family properties to our whims and
    fancies. There was no mediator in between myself and the
    6th defendant to the sale transaction. It is not true to
    suggest that Puttasampaiah was the mediator in our sale
    transaction. The pendency of the suit was informed to the
    6th defendant as on the date of the execution of regular
    registered sale deed. It was also further informed about the
    sale agreement executed in between me and the plaintiff
    and so also the exchange of legal notices and the pendency
    of the case and interim order of injunction which was in
    force against me. It is true to suggest that in violation
    to the orders of this court, I have into the sale
    transaction with the 6thdefendant. It is true to
    suggest that under Ex.P.25. I have got alienated the
    schedule property for a total sale consideration
    amount of Rs 1,86,90,000/-.

    [Emphasis Supplied]

    34.1 Concededly thus the appellant/defendant No.1 has in

    his cross-examination, admitted that he was aware of the

    subsisting injunction order and despite such knowledge

    executed the sale deed dated 01.09.2006. Accordingly,

    knowledge of the injunction order stood conclusively

    established.

    35. Thereafter, the learned Trial Court in the Impugned

    Judgment has found that there is a deliberate violation of the

    order of injunction of this Court and has directed the

    attachment of the immovable property of defendant No.1 and

    if the defendant No.1 does not possess any other property

    other than the suit schedule property, directions for

    detention in a civil prison for one month have been passed.

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    The relevant extract of the Impugned Judgment in this

    regard is as below:

    “IMPUGNED JUDGEMENT

    On perusal of the order sheet it discloses that this suit was
    filed on 3.8.2005 and ex parte temporary injunction order
    had been granted against the defendants from alienating
    the suit schedule properties till next date and it was
    extended time to time. It is an admitted fact that on
    1.9.2006 the 1st defendant has sold the suit schedule
    property in favour of the 6th defendant as per Ex.P.25, on
    that day injunction order was in force. On 19.11.2005 the
    defendant No.1 and 2 were present and prayed time to
    engage counsel and to file written statement and on that
    day also interim order was extended and on 17.6.2006
    defendants No.3 to 5 appeared in person and prayed time
    to engage counsel, on that day also injunction order was
    extended. DW1 had admitted that, when the injunction
    order was in force he sold the suit schedule property to the
    defendant. Therefore it is very clear that, willfully the
    1st defendant has violated the order of this court,
    there is breach of violation of injunction order.

    The plaintiff has filed an application under Order 39 Rule
    2A of CPC
    against the defendants for violating the court
    order. DW1 has also admitted that, in violation of the
    court order, he sold the suit schedule property.
    Therefore, it is just and necessary to pass an order on the
    breach of the injunction order. In the result, I proceed to
    pass the following:

    ORDER

    It is directed to attach the immovable property of the
    1st defendant.

    If the 1st defendant does not hold any other immovable
    property (excluding the suit schedule property), he
    shall be sent to civil prison for a period of one month.

    The plaintiff is directed to furnish the particulars of the
    immovable property of the 1st defendant.”

    [Emphasis Supplied]

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    36. The act of executing the sale deed in the face of a

    subsisting injunction order, despite admitted knowledge

    thereof, constitutes willful and deliberate disobedience.

    37. Insofar as the contention regarding absence of a separate

    inquiry is concerned, it is to be noted that such inquiry is

    warranted where the facts relating to disobedience are in

    dispute. In the present case, however and as set out above,

    these facts are admitted. Therefore, the requirement of

    inquiry stands satisfied on the basis of the admitted material

    on record, and no further evidence was warranted and the

    appeal filed by appellant/defendant No.1 being MFA

    No.4414/2015 is without merit.

    (h) Readiness and Willingness:

    38. It is settled law that specific performance of a contract

    cannot be granted unless the person (plaintiff) proves

    readiness and willingness to perform the contract as per its

    construction. It is apposite to set out Section 16(1)(c) of the

    Specific Relief Act, 1963 (hereinafter referred to as ‘the S.R.

    Act’) below, in this behalf:

    “16. Personal bars to relief. -Specific performance of
    a contract cannot be enforced in favour of a person-

    
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                (a)    xxxx
                (b)    xxxx
    

    (c) who fails to prove that he has performed
    or has always been ready and willing to
    perform the essential terms of the contract
    which are to be performed by him, other than terms
    the performance of which has been prevented or
    waived by the defendant.

    2)Explanation. For the purposes of clause (c),

    (i) where a contract involves the payment of money,
    it is not essential for the plaintiff to actually
    tender to the defendant or to deposit in Court
    any money except when so directed by the
    Court;

    (ii) the plaintiff must prove performance of, or
    readiness and willingness to perform, the
    contract according to its true construction.”

    [Emphasis Supplied]

    38.1 It is no longer res-integra that for a grant of specific

    performance of a contract, the respondent No.1/plaintiff

    must plead and prove both his readiness and willingness to

    perform the contract. The expression “readiness” relates to

    the financial capacity of the plaintiff to perform the contract,

    whereas “willingness” is to be inferred from the conduct of

    the plaintiff. The Supreme Court in Sangita Sinha Vs.

    Bhawana Bhardwaj And Others4 has held that “readiness”

    and “willingness” are distinct requirements, where readiness

    refers to the financial capacity of the plaintiff, and willingness

    4 2025 SCC OnLine SC 723

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    is to be gathered from the conduct of the plaintiff. It has

    further been held that such readiness and willingness must

    be continuous from the date of the agreement till the date of

    decree. Failure to establish the same would disentitle the

    plaintiff from the relief of specific performance. The relevant

    extract of the Sangita Sinha‘s case is set out below:

    “17. it is trite law that ‘readiness’ and ‘willingness’ are
    not one but two separate elements. ‘Readiness’
    means the capacity of the Respondent No.1 – buyer
    to perform the contract, which would include the
    financial position to pay the sale consideration.
    ‘Willingness’ refers to the intention of the
    Respondent No. 1 – buyer as a purchaser to perform
    his part of the contract, which is inferred by
    scrutinising the conduct of the Respondent No.1’s –
    buyer / purchaser, including attending
    circumstances.

    18. Continuous readiness and willingness on the
    part of the Respondent No. 1-buyer/purchaser from
    the date of execution of Agreement to Sell till the
    date of the decree, is a condition precedent for grant
    of relief of specific performance. This Court in
    various judicial pronouncements has held that it is
    not enough to show the readiness and willingness
    up to the date of the plaint as the conduct must be
    such as to disclose readiness and willingness at all
    times from the date of the contract and throughout
    the pendency of the suit up to the decree. A few of
    the said judgments are reproduced hereinbelow: —

    A. In Gomathinayagam Pillai v. Palaniswami Nadar,
    (1967) 1 SCR 227, it has been held as under:–

    “6. But the respondent has claimed a
    decree for specific performance and it is for
    him to establish that he was, since the date
    of the contract, continuously ready and
    willing to perform his part of the contract.
    If he fails to do so, his claim for specific
    performance must fail. As observed by the

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    Judicial Committee of the Privy Council in
    Ardeshir Mama v. Flora Sassoon, 1928
    SCC OnLine PC 43:

    “In a suit for specific performance, on the
    other hand, he treated and was required
    by the Court to treat the contract as still
    subsisting. He had in that suit to allege,
    and if the fact was traversed, he was
    required to prove a continuous readiness
    and willingness, from the date of the
    contract to the time of the hearing, to
    perform the contract on his part. Failure to
    make good that averment brought with it
    the inevitable dismissal of his suit.”

    The respondent must in a suit for
    specific performance of an agreement
    plead and prove that he was ready and
    willing to perform his part of the
    contract continuously between the
    date of the contract and the date of
    hearing of the suit….”

    [Emphasis supplied]

    B. In Vijay Kumar v. Om Parkash, 2018 SCC OnLine
    SC 1913, it has been held as under:–

    “6. In order to obtain a decree for specific
    performance, the plaintiff has to prove
    his readiness and willingness to
    perform his part of the contract and
    the readiness and willingness has to
    be shown throughout and has to be
    established by the plaintiff….”

    [Emphasis supplied]
    C. In J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC
    429, it has been held as under:–

    “27. It is settled law that even in the
    absence of specific plea by the opposite
    party, it is the mandate of the statute that
    the plaintiff has to comply with Section
    16(c)
    of the Specific Relief Act and when
    there is non-compliance with this statutory
    mandate, the court is not bound to grant
    specific performance and is left with no
    other alternative but to dismiss the suit. It
    is also clear that readiness to perform

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    must be established throughout the
    relevant points of time. “Readiness
    and willingness” to perform the part
    of the contract has to be
    determined/ascertained from the
    conduct of the parties.”

    [Emphasis supplied]

    D. In Umabai v. Nilkanth Dhondiba Chavan (Dead)
    By LRs.
    , (2005) 6 SCC 243, it has been held as
    under:–

    “30. It is now well settled that the conduct
    of the parties, with a view to arrive at a
    finding as to whether the plaintiff-

    respondents were all along and still are
    ready and willing to perform their part of
    contract as is mandatorily required under
    Section 16 (c) of the Specific Relief Act
    must be determined having regard to the
    entire attending circumstances. A bare
    averment in the plaint or a statement
    made in the examination-in- chief
    would not suffice. The conduct of the
    plaintiff- respondents must be judged
    having regard to the entirety of the
    pleadings as also the evidence
    brought on records.”

    [Emphasis Supplied]

    E. In Mehboob-Ur-Rehman (Dead) through Legal
    Representatives v. Ahsanul Ghani (supra), it has
    been held as under:–

    “16. Such a requirement, of necessary
    averment in the plaint, that he has already
    performed or has always been ready and
    willing to perform the essential terms of
    the contract which are to be performed by
    him being on the plaintiff, mere want of
    objection by the defendant in the written
    statement is hardly of any effect or
    consequence. The essential question to
    be addressed to by the Court in such a
    matter has always been as to
    whether, by taking the pleading and
    the evidence on record as a whole, the
    plaintiff has established that he has

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    performed his part of the contract or
    has always been ready and willing to
    do so…”

    [Emphasis Supplied]

    F. In C.S. Venkatesh v. A.S.C. Murthy (Dead) by
    Legal Representatives
    (supra), it has been held as
    under:–

    “16. The words “ready and willing” imply
    that the plaintiff was prepared to carry out
    those parts of the contract to their logical
    end so far as they depend upon his
    performance. The continuous readiness
    and willingness on the part of the plaintiff
    is a condition precedent to grant the relief
    of performance. If the plaintiff fails to
    either aver or prove the same, he must fail.
    To adjudge whether the plaintiff is ready
    and willing to perform his part of contract,
    the court must take into consideration the
    conduct of the plaintiff prior, and
    subsequent to the filing of the suit along
    with other attending circumstances. The
    amount which he has to pay the defendant
    must be of necessity to be proved to be
    available. Right from the date of the
    execution of the contract till the date
    of decree, he must prove that he is
    ready and willing to perform his part
    of the contract. The court may infer
    from the facts and circumstances
    whether the plaintiff was ready and
    was always ready to perform his
    contract.

    17. In N.P. Thirugnanam v. R. Jagan Mohan Rao
    [N.P. Thirugnanam
    v. R. Jagan Mohan Rao, (1995)

    5 SCC 115], it was held that continuous readiness
    and willingness on the part of the plaintiff is a
    condition precedent to grant of the relief of specific
    performance. This circumstance is material and
    relevant and is required to be considered by the
    court while granting or refusing to grant the relief.
    If the plaintiff fails to either aver or prove the same,
    he must fail. To adjudge whether the plaintiff is
    ready and willing to perform his part of the

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    contract, the court must take into
    consideration the conduct of the plaintiff prior
    to and subsequent to the filing of the suit along
    with other attending circumstances. The
    amount of consideration which he has to pay
    to the defendant must necessarily be proved to
    be available.

    18. In Pushparani S. Sundaram v. Pauline Manomani
    James [Pushparani S. Sundaram
    v. Pauline
    Manomani James, (2002) 9 SCC 582], this Court has
    held that inference of readiness and willingness
    could be drawn from the conduct of the plaintiff and
    the totality of circumstances in a particular case. It
    was held thus: (SCC p. 584, para 5)

    “5. … So far these being a plea that they
    were ready and willing to perform their
    part of the contract is there in the
    pleading, we have no hesitation to
    conclude, that this by itself is not
    sufficient to hold that the appellants
    were ready and willing in terms of
    Section 16(c) of the Specific Relief Act.
    This requires not only such plea but also
    proof of the same. Now examining the
    first of the two circumstances, how
    could mere filing of this suit, after
    exemption was granted be a
    circumstance about willingness or
    readiness of the plaintiff. This at the
    most could be the desire of the plaintiff
    to have this property. It may be for such
    a desire this suit was filed raising such
    a plea. But Section 16(c) of the said Act
    makes it clear that mere plea is not
    sufficient, it has to be proved.”

    [Emphasis Supplied]

    38.2 The learned Trial Court has in the Impugned Judgment

    further found that the readiness and willingness of the

    respondent No.1/plaintiff stood proved through the copies of

    the sale deed executed by the father of the

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    appellant/defendant No.1 and thus there were sufficient

    amounts to make payment. In addition the learned Trial

    Court has also found that without cancelling the Agreement

    to Sell executed in favour of respondent No.1/plaintiff, the

    sale deed dated 01.09.2006 (Ex.P25) has been executed and

    respondent No.6/defendant No.6 cannot say that he is the

    bonafide purchaser since there is an Agreement to Sell

    executed priorly. Thus, the respondent No.1/plaintiff is held

    entitled to a decree of specific performance.

    39. As stated above, the emphasis of the arguments of the

    learned counsel for the appellant/defendant No.1 is on the

    fact that readiness of the respondent No.1/plaintiff was not

    there. It is contended that the respondent No.1/plaintiff did

    not have the funds at that time and it is settled law that till

    the sale deed executed, the funds must be available. The

    respondent No.1/plaintiff on other hand has contended that

    the plaintiffs had adequate funds and in support of these

    contentions, the plaintiffs have relied on the sale deeds

    produced.

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    40. In the present case, the Agreement to Sell dated

    24.12.2004 did provide for five months period for completion

    of contract which was later extended by the

    appellant/defendant No.1. More than 50% of the entire sale

    consideration was paid as an advance and paid in cash. As

    evidence of the ability to conclude the contract, respondent

    No.1/plaintiff placed on record ten sale deeds (Exs.P39 to

    P49) executed sale of his other properties to purchase the

    suit schedule property. Although, the appellant/defendant

    No.1 has contended that values in the sale deeds would not

    provide for the total sale consideration, however, given that

    entire transaction was undertaken in cash, clearly, these sale

    deeds would also not disclose the actual amount paid as

    consideration. In addition, each of the sale deeds are in the

    vicinity of the suit schedule property and the appellant

    defendant No.1 has himself admitted that the price per acre

    for the area was at least Rs.35 Lakhs to 40 Lakhs.

    41. The respondent No.1/plaintiff [PW-1] has in his

    statement referred to the fact that on 16.05.2005 he asked

    the appellant/defendant No.1 and the defendants No.1 to

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    5/respondent Nos.1 to 5 to perform their part of the contract

    and execute the sale deed by receiving the balance sale

    consideration, but the appellant/defendant No.1 avoided the

    same and insisted that the presence of respondent Nos.1 to

    5 was not required to execute sale deed, even though they

    had executed the ATS. The relevant extract of the affidavit in

    evidence dated 06.04.2009 of respondent No.1/plaintiff in

    this behalf is set out below:

    “…On 16.04.2005, I demanded the defendants 1 to 5
    to perform their part of the contract to come and
    execute the sale deed by receiving the balance sale
    consideration amount along with one D.V.
    Puttashamaiah, G.N. Jaiprakash and Y.B. Shamanna.
    The 1st defendant avoided to meet and was not
    available for further talks. Under one pretext or the
    other, the 1st defendant went on avoiding and failed
    to perform his part of the contract. Having no other
    alternative, I gave a Notice dated 20.05.2005 within
    the stipulated period of time calling upon the
    Defendants 1 to 5 to come and perform their part of
    the contract. The Defendants 1 to 5 received the Legal
    Notice and Defendant No.1 alone gave a reply stating
    that the suit property is the self acquired property
    and he alone would come and execute the sale deed.
    I insisted the 1st defendant along with other
    defendants 2 to 5 to come and execute the sale
    deed….”

    [Emphasis Supplied]

    \ 41.1. The affidavit further sets out that the amounts were

    available with the respondent No.1/plaintiff in his bank

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    account. Ex.P34 has been produced in this behalf by the

    respondent No.1/plaintiff. An examination of Ex.P34 however

    reflects that the page that has been produced only begins

    from 04.03.2006. However, it does show a bank balance of

    Rs.23,92,302/-. Thus, the passbook proves the fact that the

    respondent No.1/plaintiff did have a substantial bank balance

    thereby, reflecting the fact that he did possess funds.

    42. It is also apposite to review the cross-examination of

    the other witnesses placed on record by the respondent

    No.1/plaintiff, which included himself as PW1 and three other

    witnesses as PW2 to PW4. The PW1 was subjected to

    extensive examination. During his examination, he deposed

    that the appellant/defendant No.1, in addition to the

    negotiated land (suit schedule property), the

    appellant/defendant No.1 also wanted the respondent

    No.1/plaintiff to buy some kharab (uncultivable) adjacent

    land. This is also reflected in the Legal Notice dated

    14.06.2005, sent by the appellant/defendant No.1 to the

    respondent No.1/plaintiff. The evidence also reflects that the

    appellant/defendant No.1 asked for additional money since

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    his daughter was going to America. The respondent

    No.1/plaintiff has further deposed that even on 20.03.2005,

    the appellant/defendant No.1 has stated that he was ready

    to execute the sale deed but not with his children as

    executants. Even thereafter, in April and May, the children of

    the appellant/defendant No.1 being defendant Nos.2, 3, 4

    and 5 did not come forward to execute the sale deed. The

    relevant extract of the cross-examination of PW-1

    (respondent No.1/plaintiff) dated 09.08.2011 is set out

    below:

    “On the date of negotiations D.V. Puttaswamaiah,
    Shivakumar, Y.B. Shamanna, Satish Babu were all
    present. The said negotiations took place on
    23.12.2004. There are 11 guntas kharab in the plaint
    schedule extent of the property. There are no talks
    about the Kharab land. It is true to suggest that the total
    extent of the property in survey No. 87 is measuring 6 acres
    38 guntas including 11 guntas of Kharab. It is true to
    suggest it was negotiated the sale consideration of
    Rs.7,25,000/- for per acre of land. The time was stipulated
    to conclude the contract dated 31.5.2005. It was also
    negotiated and agreed to pay the balance sale consideration
    amount on or before 31.5.2005. The first defendant has
    asked for money in the month of February, 2005.
    Witness Volunteers that the first defendant has asked
    for money as has daughter was going to America.

    I do not know whether the first defendant is owning no other
    properties except the plaint schedule property. The
    defendant has told that he will get execute the
    regular sale deed on his behalf. But, not by his

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    children within 31.5.2005. On 20.3.2005, it was told
    by the first defendant that the alone is ready to
    execute the sale deed, but, not by his children. I have
    contacted the 3rd defendant Mahesh at his house. He
    told that he as having work at Bidar and he is going
    and after his return let us have talks. This approach and
    talks with the 3rd defendant happened in the month of April,
    2005. After April month, I called upon the defendant
    No.3 Mahesh to come for talks. But, he never turned
    up. I have not contacted D.2, D.4 and D.5. I never
    asked the defendants 2, 4 and 5 and they never came
    forward to execute the regular sale deed. At the time
    of issuing a notices as on 20.5.2005, I have not disclosed
    nor given instructions about the approach of the first
    defendant the sale deed, but, not by his children. So also,
    the same was not informed to my Advocate at the time
    when the plaint was prepared. I have not informed my
    Advocate about the event of my approaching the 3rd
    defendant Mahesh and in turn it was told by him that after
    his returning from Bidar, he will talk to me and he did not
    approached one later on in spite of my efforts to meet him.

    xxx xxx xxx

    … It is true to suggest that under ExP45, I was asked
    to pay a sum of Rs.2 lakhs towards 11 guntas of
    kharab land. It is not true to suggest that the
    payment of Rs.2 lakhs for the kharab land was very
    much negotiated on the day of the negotiations of the
    agreement….

    xxx xxx xxx
    I am running a small scale furniture industry at
    Peenya II stage, Bangalore and so also having
    agriculture. There are about 8 to 10 employees under
    me. Since from four years, I am running my industry.
    The Turnover of the industry is Rs.10 lakhs per
    annum. I am submitting my returns and paying the
    Income Tax. I am paying Rs. 10,000/- of income Tax
    p.a. The industry is in my name. I have no impediment
    to produce all the details of my returns and income

    5 Ex- P4 -Reply dated 14.06.2005 sent to legal notice sent on behalf of
    appellant/defendant No.1

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    tax paid by me. I am prepared to produce all the details
    of my return and income tax by next date of hearing.

    xxx xxx s xxx
    I do not know that the market value per acre was Rs.8 lakhs
    in the year 2004. It is not true to suggest that the value
    to the schedule property was at the rate of Rs.35 to
    40 lakhs per acre as on the date of filing of the suit.
    It is not true to suggest that as on the date, the market
    value for per acre of land is Rs.1.5 crores per acre. It is true
    to suggest that I am leading a balanced life out of my
    earnings from the income derived from my industry. It is
    not true to suggest that the entire family of the defendants
    are depending upon the Plaint Schedule Property. It is not
    true to suggest that I have failed to arrange the balance
    sale consideration amount and as such transaction was not
    completed. It is not true to suggest that if the balance sale
    consideration was adjusted and paid, the defendant would
    not have refused to execute the regular sale deed as per
    the terms of the contract. It is not true to suggest that
    the total sale consideration amount of s.48,39,375/-
    will not even fetch an ½ acre of land in that vicinity.
    I cannot say the prevailing market value for 1 acre of
    land within the vicinity of Bethanagere village. I have not
    made enquiry to know the prevailing market value of land
    in Bethanagere village. It is not true to suggest that I have
    filed this suit only with an intention to harass the
    defendants.

    I approached the defendants by telling that I was
    ready and willing to perform my part of contract by
    paying the balance amount and to execute the regular
    registered Sale Deed. At the time when I approached
    the defendants, Puttashamaiah, Shamanna,
    Shivakumar and Satishbabu were present. On
    16.5.2005, I approached the defendants with cash of
    balance sale consideration amount. On that day, I
    met the first defendant. But, he avoided telling that
    his children have to come. It is not true to suggest
    that I never approached the defendant by
    accompanying with anyone.”

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    [Emphasis Supplied]

    43. In addition to being cross-examined by the

    appellant/defendant No.1, the respondent No.1/plaintiff was

    also cross-examined by the respondent No.6/defendant

    No.6. The cross-examination done by respondent

    No.6/defendant No.6 refers to the fact that the respondent

    No.1/plaintiff in addition to being an agriculturist also has a

    business of a furniture shop. The appellant/defendant No.1

    discussed the sale of the lands at Ex.P39 to Ex.P43 prior to

    the filing of the suit and also discusses that the respondent

    No.1/plaintiff was the owner of more than 10 acres of land.

    The relevant extract is set out below:

    “I am agriculturist and so also running furniture
    shop. I have purchased the document to show the
    operation of agriculture in my lands. I am having 10 acres
    of land, but the RTCs are produced for more than 5
    acres of land. I am raising the crops of ragi and so
    also the vegetables separately in separate areas of
    land. Per year, I am having the approximate income
    of Rs.40 to 45,000/-. We are having 8 members in our
    family. I am having nearly Rs.50,000/- of income per month
    from the furniture shop.

    I am having the bank accounts in Canara Bank and so
    also in the State Bank of India. I have not produced
    any of the documents to show my total income as on
    the date of the execution of the sale agreement with
    the first defendant. I have also not produced any

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    document to show the income which was possessed by
    me even as on the date of the filing of the suit……”

    [Emphasis Supplied]

    44. The respondent No.1/plaintiff also produced deposed

    PW-2 to PW-4, who are in addition to being the witnesses to

    the Agreement to Sell (ATS), are also the persons stated to

    have accompanied the respondent No.1/plaintiff to make the

    payment of balance sale consideration. PW2 has deposed

    that he was present on the date of the execution of the

    Agreement to Sell and that the respondent No.1/ plaintiff was

    ready to pay the balance amount and that he had

    accompanied the respondent No.1/plaintiff to the house of

    the appellant/defendant No.1 but for one pretext or another,

    he would not conclude the transaction. It also sets out that

    the appellant/defendant No.1 was demanding more money

    for the land and thus was not executing the sale deed. The

    relevant extract of the affidavit in evidence dated 09.06.2011

    of PW2 is set out below:

    “3. I was present along with my father on the date of the
    Agreement to Sell i.e. on 24.12.2004. The defendant No.1
    agreed to sell the suit schedule property at the rate of
    Rs.7,25,000/- per acre and received a sum of Rs.5,00,000/-
    /- as token advance on the date of entering into Agreement
    to Sell. Subsequently the plaintiff has paid a sum of
    Rs.20,00,000/- on 24.02.2005 as further advance towards

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    the consideration amount. The payment of further
    advance was endorsed in the Agreement to Sell by the
    defendant No.1 and 5. It was agreed by the parties to
    complete the sale transaction within a period of five
    months or on or before 31.05.2005. The plaintiff was
    ready and willing to pay the balance sale consideration
    amount and demanded defendant No.1 to come and
    execute the registered sale deed. I had accompanied the
    plaintiff 3 to 4 times to the house of the defendant
    No.1 when the demand was made by the plaintiff. The
    defendant No.1 under the pretext that his son, 2nd
    defendant is in Bidar and after his coming we would
    talk about the said transaction. Under the one pretext
    or the other he went on postponing the matter of the
    registration of the property and began to say that one
    acre of land in worth of 8 Lakhs and demanded more
    amount than the agreed amount from the plaintiff.

    4. Even though the plaintiff shown the gesture of
    paying little more money than the agreed amount the
    defendant No.1 along with his children defendants
    No.2 to 5 failed to come and execute the sale deed.”

    [Emphasis Supplied]

    44.1 PW.3 in his affidavit in evidence dated 09.06.2011, also

    deposed in respect of the readiness of the respondent

    No.1/plaintiff to sell the property and nothing adverse was

    elucidated in his cross-examination. The relevant extract is

    set out below:

    “3. In spite of plaintiff making demanded to come and
    execute the sale deed as he is ready to pay the
    balance sale consideration amount the defendant
    No.1 by expecting more money has not come forward.
    And subsequently, has sold the property to defendant
    No.6 after filing of the above suit for specific
    performance by the plaintiff.”

    Cross examination:

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    I know plaintiff very well. He is running a furniture
    industry. He is not owning any lands. Since from 10 to 12
    years I know the plaintiff. It is not true to suggest that there
    was no transaction of sale in between the plaintiff and first
    defendant. It is not true to suggest that in order to grab
    money from the 6th defendant false suit is filed and I am
    deposing falsely hear to plaintiff. It is not true to suggest
    that the plaintiff and 1st defendant and made use of the old
    stamp paper and made concocted.”

    [Emphasis Supplied]

    44.2 PW.4 deposed that he had accompanied the respondent

    No.1/plaintiff on three to four occasions for the execution of

    the sale deed and payment of the balance amounts.

    However, the appellant/defendant No.1 kept postponing the

    matter for one reason or the other. In addition, PW.4 has also

    stipulated to the fact that the agreement took place and he

    was part of the talk about the sale. The relevant extract of

    the evidence by affidavit of PW.4 is set out below:

    “The plaintiff was ready and willing to pay the balance sale
    consideration amount and demanded the defendant No.1 to
    come and execute the registered sale deed. I have
    accompanied the plaintiff 3 to 4 times to the house of
    the defendant No.1 when the demand was made by
    the plaintiff. The defendant No.1 under the pretext
    that his son, 2nd defendant is in Bidar and after his
    coming we would talk about the sale transaction.
    Under the one pretext or the other he went on
    postponing the matter of the registration of the
    property and began to say that one acre of land is
    worth of 8 Lakhs and demanded more amount than
    the agreed amount from the plaintiff.”

               xxx                   xxx                   xxx
    
    
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          Cross examination:
    
    

    It is not correct to suggest that Puttaswamaiah has
    attested the agreement on 26.12.2004. I know all
    sale talks, which took place prior to drafting the
    contents of the agreements.”

    [Emphasis Supplied]

    45. As can be seen from the depositions above, respondent

    No.1/plaintiff himself as well as P.Ws.2 to 4 all of whom have

    stated that they accompanied the respondent No.1/plaintiff

    to the house of appellant/defendant No.1. However, despite

    the same, the appellant/defendant No.1 did not execute the

    sale deed and made only excuses to delay. The respondent

    No.1/plaintiff has also contended that he wanted the sons

    and daughters of the appellant/defendant No.1 to execute

    the sale deed, however, appellant/defendant No.1

    continuously refused his request. However, when it came to

    the time of executing the agreement with respondent

    No.6/defendant No.6, not only both the sons of

    appellant/defendant No.1 signed the document, but a release

    deed was executed by the two daughters one day prior to

    this sale deed to effectuate the agreement.

    45.1 In addition, it is also an admitted fact that the

    appellant/defendant No.1 was demanding additional funds

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    from the respondent No.1/plaintiff including for the kharab

    land. The reply to the legal notice dated 14.06.2005 sent by

    the appellant/defendant No.1 clearly asks for additional

    amounts which were not reflected in the ATS. While the sale

    deed executed on 01.09.2006 was at almost three times in

    value of the sale consideration that the Agreement to Sell

    dated 24.12.2004 brought forth. Clearly thus, the

    appellant/defendant No.1 after taking the advance sale

    consideration from the respondent No.1/plaintiff had no

    intention whatsoever to execute the sale deed, since he had

    previously entered into an agreement (the Earlier ATS) for a

    much higher amount with respondent No.6/defendant No.6

    and handed over possession of the suit property to

    respondent No.6/defendant No.6. The documents and

    evidence produced by the respondent No.1/plaintiff on the

    other hand reflect that he was both ‘willing’ to purchase and

    had also taken steps to be ‘ready’ for the purchase of the suit

    schedule property.

    (i) The HMT Plaint:

    46. There is another aspect to the matter as well. The

    respondent No.6/defendant No.6 has produced Exhibit-P35,
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    a plaint in a civil suit being O.S.No.1762/2009 in the Court

    of learned Civil Judge (Sr.Dn.), Bangalore Rural District,

    Nelamangala filed by HMT Society as plaintiff, against him.

    The plaint sets out that the respondent No.6/defendant No.6

    is the owner of the suit schedule property, being Survey

    No.87 measuring to an extent of 6 acres, 27 guntas and along

    with 11 guntas of kharab land situated at Bethanagere

    Village, Dasanapura Hobli, Nelamangala Taluk, Bangalore

    North Taluk. The plaint further sets out that HMT Society had

    entered into a MOU with respondent No.6/defendant No.6 on

    11.07.2006 (hereinafter ‘HMT MOU’) and in furtherance of

    the MOU, the respondent No.6/defendant No.6 has been paid

    Rs.2,31,57,100/-. It also sets out that the HMT MOU required

    the land to be transferred to the name of HMT Society. The

    plaint in addition references as Agreement of Sale dated

    02.09.2006 in pursuance thereof, where the HMT Society has

    agreed to sell the suit schedule property to the respondent

    No.6/defendant No.6 for a consideration of Rs.1,86,90,000/-

    The plaint also sets out that in pursuance of the HMT MOU,

    certain amounts have been paid in cheque and cash directly

    to the erstwhile landowners (appellant/defendant No.1) in
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    terms of the details set out therein. The relevant extract of

    the plaint (Ex.P-35) is below:

    “1.The defendant is the absolute owner in possession
    of all that piece and parcel of agricultural dry land
    bearing Sy. No.87 measuring to an extent of 6 Acre
    27 Guntas along with 11 guntas of Kharab situated at
    Bethanagere Village, Dasanapura Hobli, Bangalore North
    Taluk, more fully described in the Schedule hereto and
    hereinafter referred to as the “Schedule Property”. The
    plaintiff and the defendant have entered into a
    memorandum of Understanding dated July 11th,
    2006. The plaintiff has produced and in furtherance of the
    Understanding dated July 11th, 2006, the plaintiff has paid
    to the defendant totally a sum of Rs.2,31,57,100/- (Rupees
    two crore thirty one lakhs fifty seven thousand one hundred
    only) either by way of cheques or by way of Demand Drafts.

    As per the understanding, the plaintiff has agreed to
    procure approximately 60 acres land at Bethanagere
    Village, Dasanapur Hobli, Bangalore North Taluk and
    the defendant has to proceed to register the lands in
    parts for which the title is cleared by the Legal
    advisor of the plaintiff. After the registration of the land,
    the defendant is required to enter into an Agreement to Sell
    with the plaintiff in respect of the lands registered in favour
    of the defendant. In terms of understanding, upon
    registration of the Sale Deed in respect of the
    Schedule Property in favour of the defendant, the
    defendant has entered into a Sale Agreement dated
    September 2nd, 2006 (“Sale Agreement”) with the
    plaintiff agreeing to sell the Schedule property to the
    defendant for a total consideration of
    Rs.1,86,90,000/-. The agreement dated September
    2nd2006 is produced as Document No.2. In fact, in addition
    of the amount paid as above, the plaintiff has paid certain
    amount towards registration of the sale deeds, towards
    stamp duty and registration fee. It is pertinent to point out
    that out of the payment made under and pursuant to
    understanding, the defendant has paid certain amount to
    the erstwhile owners of the Schedule Property. The same is
    adjusted towards the consideration Agreed under the Sale
    Agreement. Accordingly, in the agreement, the
    Cheques/cash issued by the defendant in favour of
    the erstwhile land owners of the Schedule Property
    has been adjusted by showing the cheques/cash
    issued by the defendant, as under:

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    a) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on November 4, 2004 by cash to erstwhile
    owners.

    b) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on November 10, 2004 by cash to erstwhile
    owners.w

    c) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on November 16, 2004 by cash to erstwhile
    owners.

    d) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on November 22, 2004 by cash to erstwhile
    owners.

    e) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on November 27, 2004 by cash to erstwhile
    owners.

    f) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on December 4, 2004 by cash to erstwhile
    owners.

    g) A sum ofRs.10,00,000/- (Rupees Ten Lakhs only]
    paid on December 11, 2004 by cash to erstwhile
    owners.

    h) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on December 18, 2004 by cash to erstwhile
    owners.

    i) A sum of Rs.13,50,000/- (Rupees Thirteen Lakhs
    Fifty Thousand only) by way of Cash paid on
    December 22,2004 erstwhile owners.

    j) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No. 487966 dated —- drawn on UCO Bank,
    Jalahalli Branch, Bangalore.

    k) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.487967 dated —- drawn on UCO Bank,
    Jalahalli Branch, Bangalore.

    l) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.487968 dated —- drawn on UCO Bank,
    Jalahalli Branch, Bangalore.

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    m) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.487969 dated —- drawn on UCO Bank,
    Jalahalli Branch, Bangalore.

    n) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.380516, dated September 11, 2006,
    drawn on Syndicate Bank, Jayanagar, 3rdBlock,
    Bangalore-560011.

    o) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.380517, dated September 21, 2006,
    drawn on Syndicate Bank, Jayanagar, 3rdBlock,
    Bangalore-560011.

    p) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No. 380518, dated October 01, 2006, drawn
    on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore-
    560011.

    q) Asum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.380519, dated October 11, 2006, drawn
    on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore-
    560011.

    r) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.380520, dated October 21, 2006, drawn
    on Syndicate Bank, Jayanagar, 3rdBlock, Bangalore-
    560011.

    s) A sum of Rs.9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) by way of Demand Draft
    bearing No.380521, dated November 01, 2006,
    drawn on Syndicate Bank, Jayanagar, 374 Block,
    Bangalore-560011.”

    [Emphasis Supplied]

    46.1 This Agreement to Sell has thus been executed one day

    after the Sale Deed was executed between appellant/

    defendant No.1 and respondent No.6/defendant No.6.

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    46.2. The plaint [Ex.P-35] dated 18.09.2009 further set out

    that the respondent No.6/defendant No.6 (defendant

    therein) has handed over the original title documents of the

    suit schedule property to HMT Society. The plaint also sets

    out that the entire sale consideration of Rs.1,86,90,000/- has

    been paid by the HMT Society to the respondent

    No.6/defendant. In addition, it is contended in the plaint that

    the suit schedule property was to be converted from

    agricultural to non-agricultural residential purposes and

    Layouts were to be sanctioned and constructed by the HMT

    Society and that they are currently in possession of the same.

    The relevant extract of the HMT Society plaint is below:

    “2. Under the Sale Agreement, the defendant has agreed
    and undertaken to sell the Schedule Property to the plaintiff
    by getting the same converted from agricultural to non-
    agricultural residential purpose form the competent
    authority. Under the Sale Agreement, the defendant has
    handed over the original title deed to the Schedule Property
    standing in the name of the defendant. Under the Sale
    Agreement the defendant has agreed to make out a title to
    the Schedule Property to the satisfaction of the plaintiff.
    Under the Sale agreement, the defendant has agreed to sell
    the Schedule Property after conversion or sell the sites
    formed therein to the plaintiff or its nominee/members after
    forming the layout by obtaining the layout plan sanctioned
    from the competent authority. Under the sale
    Agreement, the defendant has agreed to and
    undertake to hand over the physical vacant
    possession of the Schedule Property to the plaintiff or
    to its nominee on the date of execution and
    registration of the Sale deed.

    
    
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                   xxx                  xxx                   xxx
    
    

    4. The Plaintiff submits that the Plaintiff has entered into
    an Agreement to Sell dated September 2nd 2006 and has
    paid an entire sale consideration of Rs.1,86,90,000/-
    (Rupees One Crore Eighty Six Lakhs Ninety Thousand Only)
    to the Defendant. Having received the entire sale
    consideration. Defendant has handed over the
    original documents of title to the Plaintiff. The
    Plaintiff is in possession of the original documents of
    title and has sufficient money to pay requisite stamp
    duty and registration fee for execution and
    registration of the Sale Deed. Under the Agreement to
    Sell, the Plaintiff has agreed to sell the Schedule Property
    and agreed to execute and register the Sale Deed either in
    the name of the Plaintiff or in the name of its nominee. It is
    submitted that the Plaintiff is/was always expecting that the
    Defendant would perform his obligations in terms of the
    Agreement to Sell. In response to the Plaintiff’s
    request, the Defendants have refused to execute and
    register the Sale deed. The Defendant who have
    received substantial amount of Rs.1,86,90,000/-
    (Rupees One Crore Eighty Six Lakhs Ninety Thousand
    Only) ought to have complied with the terms of the
    Agreement and executed and registered the Sale
    Deed in favour of the Plaintiff or in favour of its
    nominee. The Defendant not issued any notice rescinding
    the contract. The Agreement to Sell dated 02.09.2006
    between the Plaintiff and the Defendants is still subsisting
    and validly enforceable.”

    [Emphasis Supplied]

    46.3. The suit thus has been filed directing specific

    performance of the Agreement of Sale dated 02.09.2006

    executed between HMT Society and respondent No.6 in

    pursuance of the HMT MOU dated 11.07.2006. There is no

    reference to the earlier MOU.

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    47. In the Written Statement filed to the HMT Society suit,

    the respondent No.6/defendant No.6 does not deny the sale

    of the suit schedule property to the HMT Society or that

    amounts were paid. The respondent No.6/defendant No.6

    however avers that the cheques and amounts were not paid

    to him, but were paid to the erstwhile owners of the property.

    The erstwhile owners here would reference the

    appellant/defendant No.1. The relevant extract of the Written

    Statement (Ex.P36) dated 30.08.2010 filed by respondent

    No.6/defendant No.6 to the HMT society plaint is set out

    below:

    ” 4. With regard to the contents of paragraph No.1 of III of
    the plaint that the defendant is the absolute owner in
    possession of all that piece and parcel of agricultural
    dry lands bearing Survey No. 87 measuring to an
    extent of 6 acre 27 guntas along with 11 guntas of Karab
    land situated at Bethangere Village Dasanapura Hobli,
    Bangalore Taluk (hereinafter referred to as the Schedule
    Property) and further that the Plaintiff and the Defendant
    have entered into a Memorandum of Understanding
    (MOU) dated 11.07.2006 are all true and correct, and
    that the same warrants no comments from this Defendant.

    It is further submitted with regard to the averments that in
    furtherance of the said MOU the plaintiff has paid the
    Defendant totally an amount of Rs.2,31,57,000/- either by
    way of Cheque or DD are all vehemently and emphatically
    denied as false and that the Plaintiff is put to strict proof of
    the same. Further the averments that as per the MOU the
    Defendant had agreed to procure 60 acres land in

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    Bethanagere Village and further that the Defendant has to
    proceed to register the lands in parts for which the title has
    been cleared by the legal advisor of the Plaintiff are all true
    and correct, and that the same warrants no comments from
    this Defendant. It is further submitted that after registration
    of the lands, the defendant is required to enter into an
    Agreement to Sell with respect to the lands registered in his
    favour are all false and that the Plaintiff is put to strict proof
    of the same.

    With regard to the remaining averments of the same
    paragraph that in terms of the said MOU the Defendant
    has entered into a sale agreement dated 02.09.2006
    with the Plaintiff agreeing to sell the schedule
    property for a total consideration of Rs.
    1,86,90,000/- are all vehemently and emphatically
    denied as false and that the Plaintiff is put to strict
    proof of the same.

    xxx xxx xxx
    It is submitted that in reality it is only the Defendant
    who has paid for the entire sale consideration to get
    the lands registered in his name and that the Plaintiff
    has never made any payments to the defendant.

    It is further submitted with regard to the averments that
    the same is adjusted towards the consideration agreed
    under the sale agreement are vehemently and emphatically
    denied as false and that the Plaintiff is put to strict proof of
    the same. Defendant most humbly submits that he has
    at no point of time entered into any sale agreement.
    It is further submitted with regard to the averments
    that accordingly in the agreement the Cheques/Cash
    issued by the Defendant in favour of the erstwhile
    land owners of the Schedule Property has been
    adjusted by showing the Cheque/Cash issued by the
    Defendant are all specifically and expressly denied as
    false and that the Plaintiff is put to strict proof of the
    same…..”

    [Emphasis Supplied]

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    48. The sale deed executed between respondent No.6 and

    appellant/defendant No.1 on 01.09.2006 in paragraph No.1

    references that the sale consideration of Rs.1,89,90,000/-

    has been received by drafts as well as cash, in the following

    manner:

    “1. In consideration of the amount agreed towards the
    purchase of the Schedule Property, the Purchaser agrees to
    pay to the Vendor the agreed sale consideration of
    Rs.1,86,90,000/- (Rupees One Crore Eighty-Six Lakhs
    Ninety Thousand Only) as hereunder:

    a) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on 04.11.2004 paid by the Purchaser to the Vendor by
    way cash.

    b) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on 10.11.2004 paid by the Purchaser to the Vendor by
    way cash.

    c) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only)
    paid on 16.11.2004 paid by the Purchaser to the Vendor by
    way cash.

    d) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only)
    paid on 22.11.2004 paid by the Purchaser to the Vendor by
    way cash.

    e) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only)
    paid on 27.11.2004 paid by the Purchaser to the Vendor by
    way cash.

    f) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only
    paid on 04.12.2004 paid by the Purchaser to the Vendor by
    way cash.

    g) A sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
    paid on 11.12.2004 paid by the Purchaser to the Vendor by
    way cash.

    h) A sum of Rs. 10,00,000/- (Rupees Ten Lakhs only)
    paid on 18.12.2004 paid by the Purchaser to the Vendor by
    way cash.

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    i) A sum of Rs. 13,50,000/- (Rupees Thirteen Lakhs
    Fifty Thousand only) paid on 22.12.2004 paid by the
    Purchaser to the Vendor by way cash.

    j) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Demand Draft bearing No.
    487966 dated —- drawn on UCO Bank, Jalahalli Branch,
    Bangalore.

    k) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only vide Demand Draft bearing No. 487967
    dated —- drawn on UCO Bank, Jalahalli Branch, Bangalore.

    l) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Demand Draft bearing No.487968
    dated —- drawn on UCO Bank, Jalahalli Branch, Bangalore.

    m) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Demand Draft bearing No.
    487969 dated —- drawn on UCO Bank, Jalahalli Branch,
    Bangalore.

    n) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Cheque bearing No.380516,
    dated 11.09.2006, drawn on Syndicate Bank, Jayanagar,
    3rd Block, Bangalore-560011.

    o) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only vide Cheque bearing No.380517, dated
    21.09.2006, drawn on Syndicate Bank, Jayanagar, 3rd
    Block, Bangalore-560011.

    p) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Cheque bearing No.380518,
    dated 01.10.2006, drawn on Syndicate Bank, Jayanagar,
    3rd Block, Bangalore-560011.

    q) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Cheque bearing No.380519,
    dated 11.10.2006, drawn on Syndicate Bank, Jayanagar,
    3rd Block, Bangalore-560011.

    r) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Cheque bearing No.380520,
    dated 21.10.2006, drawn on Syndicate Bank, Jayanagar,
    3rd Block, Bangalore – 560 011.

    s) A sum of Rs. 9,34,000/- (Rupees Nine Lakhs Thirty
    Four Thousand only) vide Cheque bearing No.380521,
    dated 01.11.2006, drawn on Syndicate Bank, Jayanagar,
    3rd Block, Bangalore – 560 011.

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    (The receipt of which sums the Vendor hereby admits and
    acknowledges.)”

    48.1 The reference to these amounts is exactly the same as

    has been referred to in the HMT plaint filed as Ex.P35 i.e.,

    the suit for specific performance inter-se the HMT Society and

    respondent No.6/defendant No.6. Thus, the amounts that

    were received by the appellant/defendant No.1 were in fact

    not received from respondent No.6/defendant No.6, but from

    HMT Society and this has been admitted by the respondent

    No.6/defendant No.6 in its written statement [Ex.P-36].

    Thus, so far as concerns the appeal filed by the respondent

    No.6/defendant No.6, qua the suit schedule property, the

    same cannot be considered in view of the fact that he has

    admittedly not paid the consideration amount for the Sale

    Deed that was executed in his favour but has been paid by

    HMT Society and the transfer was pendente lite.

    (j) Lis Pendence

    49. However, and in any event, as has been discussed

    above, the sale deed [Ex.P-25] was executed by

    appellant/defendant No.1 in contravention of the order of

    injunction passed by the learned Trial Court on 03.08.2005

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    and despite knowledge of the order of injunction. Section 52

    of the Transfer of Property Act, 1882, prohibits such transfer

    in the following manner:

    “52. Transfer of property pending suit relating
    thereto.–During the pendency in any Court having
    authority within the limits of India excluding the State of
    Jammu and Kashmir or established beyond such limits by
    the Central Government of any suit or proceedings
    which is not collusive and in which any right to
    immoveable property is directly and specifically in
    question, the property cannot be transferred or
    otherwise dealt with by any party to the suit or
    proceeding so as to affect the rights of any other
    party thereto under any decree or order which may be
    made therein, except under the authority of the Court and
    on such terms as it may impose.

    Explanation.–For the purposes of this section, the
    pendency of a suit or proceeding shall be deemed to
    commence from the date of the presentation of the
    plaint or the institution of the proceeding in a Court of
    competent jurisdiction, and to continue until the suit or
    proceeding has been disposed of by a final decree or
    order and complete satisfaction or discharge of such
    decree or order has been obtained, or has become
    unobtainable by reason of the expiration of any period of
    limitation prescribed for the execution thereof by any law
    for the time being in force.”

    [Emphasis Supplied]

    49.1. The Supreme Court in Rajender Singh V. Santa

    Singh6, has held that a transferee pendente lite is bound by

    the decree passed in the suit, and such transfer cannot defeat

    the rights of the parties or the jurisdiction of the Court during

    6(1973) 2 SCC 705

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    the pendency of the proceedings. The relevant extract of

    Rajender Singh case is set out below:

    “14. The background of the provision set out above was
    indicated by one of us (Beg, J.,) in Jayaram Mudaliar v.
    Ayyaswami
    [(1972) 2 SCC 200, 217: AIR 1973 SC 569].
    There, the following definition of the lis pendens from
    Corpus Juris Secundum(Vol. LIV, p. 570) was cited:

    “Lis pendens literally means a pending suit, and
    the doctrine of lis pendens has been defined as
    the jurisdiction, power, or control which a court
    acquires over property involved in a suit pending
    the continuance of the action, and until final
    judgment therein.”

    It was observed there:

    “Expositions of the doctrine indicate that the need for it
    arises from the very nature of the jurisdiction of Courts
    and their control over the subject-matter of litigation so
    that parties litigating before it may not remove any part
    of the subject-matter outside the power of the Court to
    deal with it and thus make the proceedings
    infructuous.”

    15.The doctrine of lis pendens was intended to strike
    at attempts by parties to a litigation to circumvent the
    jurisdiction of a court, in which a dispute on rights or
    interests in immovable property is pending, by
    private dealings which may remove the subject-
    matter of litigation from the ambit of the Court’s
    power to decide a pending dispute or frustrate its
    decree. Alienees acquiring any immovable property
    during a litigation over it are held to be bound, by an
    application of the doctrine, by the decree passed in
    the suit even though they may not have been
    impleaded in it. The whole object of the doctrine of lis
    pendens is to subject parties to the litigation as well as
    others, who seek to acquire rights in immovable property,
    which are the subject-matter of a litigation, to the power
    and jurisdiction of the Court so as to prevent the object of
    a pending action from being defeated.”

    [Emphasis Supplied]

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    50. There was no valid transfer of title by the Earlier ATS,

    but only an agreement to enter into one. Undisputably, the

    sale deed executed by the appellant/defendant No.1 in

    favour of respondent No.6/defendant No.6 was pendente lite

    the suit filed by the respondent No.1/plaintiff in

    contravention of an interim injunction. Since the final

    judgment does not uphold the defence of

    appellant/defendant No.1, no rights flow to respondent

    No.6/defendant No.6 either.

    (k) He who seeks equity must do equity:

    51. It is a fundamental principle of law that ‘he who seeks

    equity must do equity’. A party seeking equitable relief must

    act fairly, ethically, and be willing to fulfil their own

    legal/equitable obligations toward the other party. It ensures

    fairness, preventing a party from gaining an advantage while

    ignoring their own duties. The Courts have consistently

    denied equitable relief to litigants who: (i) suppress material

    facts; (ii) approach with unclean hands; (iii) misuse the

    judicial process; (iv) fail to perform their own contractual

    obligations; or (v) seek to benefit from their own wrongful

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    acts; (vi) seek inconsistent reliefs. The principle is also

    applicable to appeals since it is an extension of the suit.

    52. The Supreme Court in Muddam Raju Yadav v. B. Raja

    Shanker (D) through LRs. & Ors.7 has observed that in a

    suit for specific performance, the conduct of the parties

    assumes considerable significance, as it aids the Court in

    assessing their bona fides at the time of execution of the

    agreement. It has been further held that even a slight doubt

    regarding the plaintiff’s bona fides, or any suppression of

    material facts have a bearing on the agreement and equitable

    and discretionary relief is to be denied. The relevant extract

    Muddam Raju’s case is set out below:

    12 “In a suit for specific performance, the conduct of
    the parties is significant as it assists the Court in
    evaluating the evidence to find out the bona fides of
    the parties at the time of execution of the agreement.

    Even a slight doubt in the mind of the Court that the
    plaintiff was not acting bonafidely and that the
    material facts, having bearing on the agreement,
    have been withheld in the agreement itself and from
    the Court also, the equitable and discretionary relief
    has to be denied. A plaintiff approaching the Court
    with uncleaned hands, like in the present case–the
    plaintiff having withheld the document i.e., MoU
    (Exhibit B-2), as the same was nowhere mentioned in
    the plaint, the present was a fit case for denial of
    relief of specific performance and the High Court has
    rightly allowed the appeal preferred by the

    7 2026 SCC OnLine SC 348

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    respondent(s)/defendant(s) to set aside the
    judgment and decree passed by the Trial Court.”

    13. For the foregoing reasons, we do not find any substance
    in this Appeal. Hence, the Appeal fails and the same is,
    accordingly, dismissed.”

    [Emphasis Supplied]

    IX. Conclusion:

    53. Applying this principle to the conduct of the

    appellant/defendant No.1, it can be seen that in the present

    case the appellant/defendant No.1 would not be entitled to

    any relief from this Court either. The appellant/defendant

    No.1 did not give any explanation before this Court as to the

    reason for execution of the Earlier ATS which he was unable

    to prove except for the admission of its execution. Hence,

    this Court affirms the finding of the learned Trial Court that

    the document was likely fabricated to overcome the ATS. No

    reason was given as to why the appellant/defendant No.1

    executed the Sale Deed along with his sons-respondent

    No.2/defendant No.2 and respondent No.5/defendant No.5

    on 01.09.2006 or with regard to and the execution of the

    release deed dated 30.08.2006 by respondent

    No.3/defendant No.3 and respondent No.4/defendant No.4,

    when he was admittedly continuously informing respondent

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    C/W MFA No. 4414 of 2015
    RFA No. 799 of 2015
    HC-KAR

    No.1/plaintiff that defendants No.2 to 5 would not be

    required to be present to execute the sale deed with the

    respondent No.1/plaintiff.

    53.1 In addition absolutely no explanation or remorse has

    been shown qua the defiance of the orders of Injunction of

    the learned Trial Court either by the appellant/defendant

    No.1. Despite the ATS and pendency of a suit filed by the

    respondent No.1/plaintiff, a sale deed was executed in favour

    of respondent No.6/defendant No.6. These transactions

    speak volumes of the conduct of the appellant/defendant

    No.1, clearly, he was habituated to executing multiple

    transactions for the same property even if it meant defiance

    of court orders.

    54. In the present case, the conduct of the

    appellant/defendant No.1 clearly demonstrates that he has

    engaged in multiple and conflicting transactions in respect of

    the same property, including execution of agreements and

    sale deeds in favour of different parties, even in the face of

    subsisting contractual obligations and a court order of

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    RFA No. 848 of 2015
    C/W MFA No. 4414 of 2015
    RFA No. 799 of 2015
    HC-KAR

    injunction. Such conduct disentitles him from seeking any

    equitable consideration from this Court.

    55. In addition, and once the appellant/defendant No.1

    admits to the execution of the Earlier Agreement and acts

    thereon and accepts amounts in part performance of such

    agreement, he loses his right to challenge the ATS executed

    with the respondent No.1/plaintiff. Accordingly, RFA

    No.848/2015 filed by appellant/defendant No.1 is

    dismissed.

    56. In the present case not only has the sale deed dated

    01.09.2006 [Ex-P25] been executed during the pendency of

    the suit filed by the respondent No.1/plaintiff, it has also

    been executed in defiance of an order passed by a competent

    Court. Thus, the sale deed is null and void and not binding

    on the respondent No.1/plaintiff.

    57. In view of the aforegoing discussions and given the

    settled law, this Court is not inclined to entertain the appeal

    filed by the respondent No.6/defendant No.6. Accordingly,

    RFA No.799/2015 is also dismissed.

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    58. As discussed in para 28 above, the Impugned

    Judgement dated 26.03.2015 was passed by the learned Trial

    Court on I.A.No.5 filed under Order XXXIX Rule 2A of the CPC

    holding that appellant/defendant No.1 has violated the order

    of the learned Trial Court and there is a wilful breach of

    injunction order. The learned Trial Court has held that it is

    just and necessary to pass order on breach of injunction and

    hence it directed the attachment of the immovable property

    of the appellant/defendant No.1 and if the

    appellant/defendant does not hold any property excluding

    suit schedule property, he shall be sent to civil prison for one

    month. In view of the aforegoing discussions, this Court does

    not find any ground to interfere with this finding of the

    learned Trial Court. Accordingly, MFA No.4414/2015 is also

    dismissed.

    59. In addition and in view of the demonstrably defiant

    conduct of the appellant/defendant No.1, costs in the sum of

    Rs.1,00,000/- shall be paid by appellant/defendant No.1 to

    respondent No.1/plaintiff.

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    C/W MFA No. 4414 of 2015
    RFA No. 799 of 2015
    HC-KAR

    60. All pending applications stand closed.

    Digitally signed by DINESH
    KUMAR SINGH
    Location: HIGH COURT OF
    KARNTAKA

    (D K SINGH)
    JUDGE
    Digitally signed by TARA
    VITASTA GANJU
    Location: HIGH COURT
    OF KARNTAKA
    (TARA VITASTA GANJU)
    JUDGE

    YN/JJ

    103

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