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,
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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
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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.
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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,
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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,
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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
I. Preface: ……………………………………………………. 7
II. Brief Facts: ……………………………………………….. 9
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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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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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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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HC-KARSell 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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HC-KARIN 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 the32
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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 paid33
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HC-KARa 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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HC-KAROn 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 my40
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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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HC-KARThe 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. 45 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR
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 has48
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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:
“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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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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HC-KARHeard. 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 – 5I.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 personPlaintiffs 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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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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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.
62
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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-
64 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR (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 the66
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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 perform67
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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 has68
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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 his75
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HC-KARchildren 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 income5 Ex- P4 -Reply dated 14.06.2005 sent to legal notice sent on behalf of
appellant/defendant No.176
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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 any78
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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 towards79
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HC-KARthe 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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HC-KARI 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 81 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 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.
88 NC: 2026:KHC:24085-DB RFA No. 848 of 2015 C/W MFA No. 4414 of 2015 RFA No. 799 of 2015 HC-KAR 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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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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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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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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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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