The Indian Sainik Educational vs Revana Siddaiah
2022 Latest Caselaw 11019 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JULY 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

            R. F. A. NO.495 OF 2010 (SP)

BETWEEN:

THE INDIAN SAINIK EDUCATIONAL
AND CHARITABLE TRUST
"SHREYAS", NO.1654, 3RD MAIN, 7TH CROSS,
"C" BLOCK, SAHAKARA NAGAR,
BANGALORE 92
REP. BY ITS PRESIDENT
SRI. SUBRAMANIAM
                                           ...APPELLANT
(BY SRI. G.V. SHASHI KUMAR, ADVOCATE)

AND:

1.     REVANA SIDDAIAH
       S/O LATE REVANNA
       AGED ABOUT 56 YEARS

       SINCE DEAD BY HIS LR'S

2.     SMT GANGAMMA
       W/O REVANNA SIDDAIH
       AGED ABOUT 48 YEARS

3.     SIDDALINGA KUMAR
       S/O REVANNA SIDDAIH
       AGED ABOUT 28 YEARS
                          2




4.   D R RENUKAMMA
     D/O REVANNA SIDDAIH
     AGED ABOUT 25 YEARS

     RESPONDENT Nos.2 TO 4 ARE
     R/A 5TH CROSS, 2ND MAIN, NEAR SRIRAJ TALKIES,
     KYATASANDRA POST,
     TUMKUR-572 104.

5.   SMT. SHIVARAJAMMA @ YASHODA
     W/O PRAKASH B P
     AGED ABOUT 32 YEARS
     R/A # 1089, TYPE III
     S.P.G.COMPLEX, DWARAKHA SECTOR
     SECTOR VIII, PAPPANKALA
     NEW DELHI-110 045.

6.   SRI D G APPAYYANNA
     S/O SRI GALAPPA, MAJOR
     R/A "MATHRU NILAYA"
     RAJANUKUNTE VILLAGE AND POST
     HESARAGHATTA HOBLI
     BANGALORE NORTH TALUK - 560 064

7.   SRI K R SATYANARAYANA
     S/O N RAMU, MAJOR,
     R/O NARAGANAHALLI TOOBAGERE HOBLI
     DODDABALLAPUR TALUK - 561 204.
                                  ....RESPONDENTS

(VIDE ORDER DATED 27.3.2015 R2 TO R5 ARE THE
LR'S OF R1
SRI. A. BALAKRISHNA BY BALU ASSOCIATES FOR
R1 TO R4 AND R6
SRI. VENKATESH C. SHARMA BY SRI. VAISHNAVI LAW
ASSOCIATES FOR R-7
SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT)
                               3




     THIS RFA IS FILED UNDER SEC.96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2009
PASSED IN O.S.NO.132/2005 ON THE FILE OF THE CIVIL
JUDGE (SR.DN) DODDABALLAPUR, DISMISSING THE SUIT
FOR SPECIFIC PERFORMANCE OF CONTRACT.

     THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

The appellant aggrieved by the judgment and

decree dated 30.11.2009, passed in O.S.No.132/2005

by the Civil Judge (Sr.Dn.), Doddaballapur, has filed

this appeal.

2. Parties are referred to as per their ranking

before the Trial Court. The appellant is the plaintiff

and respondents are the defendants before the Trial

Court.

3. Brief facts leading rise to filing of this appeal

are as under:

Plaintiff filed a suit for specific performance of

contract. It is the case of the plaintiff that plaintiff-

Trust is a registered Trust and was established with

the object of imparting education and to carry on and

promote the Indian tradition. It is pleaded that

defendants 1 and 2 being the owners of the suit

schedule property offered to sell the suit land to the

plaintiff-Trust. Plaintiff agreed to purchase the suit

schedule land for a consideration of Rs.13,75,000/-

and plaintiff paid part consideration amount of

Rs.3,00,000/- to the defendants and defendants

executed agreement of sale on 10.09.2004.

Defendant No.1 executed the receipt for having

received part consideration amount of Rs.3,00,000/-.

It is stated that under the agreement, it was agreed

by the defendants that they would clear the pending

suit in O.S.No.816/2001 on the file of Civil Judge,

Tumkur and would communicate the same to the

plaintiff in order to make way for registration of land

in favour of the plaintiff. No such intimation was

received by the plaintiff. It was agreed that the sale

deed to be executed within a period of 3 months from

the completion of sale formalities. However,

defendants did not come forward to execute the

registered sale deed. Plaintiff was and is ready and

willing to perform his part of contract. Therefore

plaintiff got issued legal notice on 07.12.2004, calling

upon the defendants to accept the balance

consideration amount and execute the registered sale

deed in favour of plaintiff. The defendants did not

execute the registered sale deed. Hence cause of

action arose for the plaintiff to file the suit for specific

performance of contract.

3.1. The defendant No.1 filed written statement

denying the averments made in the plaint and also

denied that execution of agreement of sale in favour

of plaintiff and also receipt of advance amount of

Rs.3,00,000/- as alleged in the plaint. It is contended

that the plaintiff has concocted the documents by

suppressing the real facts and further the plaintiff has

played fraud on the defendants. Plaintiff being a Trust

has no right to purchase the agricultural land and

there is a prohibition as per the provisions of the

Karnataka Land Revenue Act and Rules. The suit

schedule property does not belong to defendant No.1

alone, but it is a joint family property. Hence prayed

to dismiss the suit.

3.2. Defendants 2 to 4 have filed separate

written statement contending that defendant No.1 is

not having good relationship with defendants 2 to 4.

It is contended that defendant No.1 has borrowed loan

for illegal purpose and wasted money. It is further

contended that defendant No.1 is in collusion with the

close associates of plaintiff and plaintiff got created

the documents in collusion with defendant No.1. It is

contended that the execution of alleged receipt and

execution of agreement of sale are not within the

knowledge of defendants 2 to 4. It is contended that

defendant No.2 is the absolute owner of Sy.No.161

and defendant No.1 has no right or title over the

same. Plaintiff being the Trust has no right to

purchase the agricultural land. Hence prayed to

dismiss the suit.

3.3. Defendants 6 and 7 have filed written

statement denying the plaintiff's claim and contended

that defendants 6 and 7 are agriculturists and having

their landed properties in and around the suit

schedule property. They have purchased the suit

schedule property by paying valuable consideration.

From the date of purchase, defendants 6 and 7 are in

possession of their respective portions by cultivating

the same personally. Defendant No.2 was the

absolute owner in possession of the suit schedule

property. Defendants 6 and 7 are the bona fide

purchasers for value without notice and hence prayed

to dismiss the suit.

3.4. The Trial Court, on the basis of pleadings,

framed the following issues:

     1.   Whether       plaintiff         proves         the     suit
          Agreement of Sale transaction dated
          10.9.2004       entered         into      by     the    1st

defendant as kartha of the joint family to sell suit schedule properties for an amount of Rs.13,75,000/- and paying him an advance of Rs.3,00,000/-?

2. Whether plaintiff further proves that despite their ready and willing to perform their part of contract the 1st defendant deliberately failed to come forward for execution of a registered sale deed?

3. Whether 2nd defendant proves that she is the absolute owner of suit land Sy.No.161 without any semblance whatsoever of her husband 1st defendant?

4. Whether defendants No.1, 6 and 7 prove that suit Agreement of sale document is fraudulently got up and created by the plaintiff in a different loan transaction as pleaded?

5. Whether plaintiff's suit is not maintainable being not signed by all the trustees together as pleaded by the defendants No.6 and 7?

6. Whether defendant No.6 and 7 prove that they are bonafide purchasers of both the suit schedule properties from defendants No.1 to 5 for valuable consideration?

7. Whether plaintiff's suit valuation and Court fee paid is not sufficient?

8. Whether plaintiff is entitled to get the relief for Specific Performance of Contract or in alternative for refund of the advance amount as prayed?

9. What order or decree?

3.5. In support of the case of the plaintiff, the

President of Trust examined as PW-1 and one witness

examined as PW-2 and got marked documents at

Ex.P1 to Ex.P29. In support of the case of

defendants, defendants 1 and 3 are examined as DW-

1 and DW-2, respectively and two witnesses are

examined as DW-3 and DW-4 and got marked

documents at Ex.D1 to Ex.D29. The Trial Court after

recording the evidence and considering the material

on record, held that plaintiff has failed to prove the

agreement of sale dated 10.09.2004, entered into by

the defendant No.1 as kartha of the joint family to sell

the suit schedule property for an amount

Rs.13,75,000/- and payment of advance of

Rs.3,00,000; further held that plaintiff has failed to

prove that despite their readiness and willingness to

perform their part of contract, defendant No.1

deliberately failed to come forward for execution of

the registered sale deed; further held that defendant

No.2 has failed to prove that she is the absolute

owner of suit land Sy.No.161 without any semblance

whatsoever of her husband defendant No.1; further

held that defendants 1, 6 and 7 have proved that suit

agreement of sale is fraudulently got up and created

by the plaintiff in a different loan transaction as

pleaded; further held that the plaintiff's suit is not

maintainable and answered issue No.5 in the

negative; further held that defendants 6 and 7 have

proved that they are the bona fide purchasers of both

the suit schedule properties from defendants 1 to 5 for

valuable consideration; further held that the plaintiff is

not entitled for the relief of specific performance of

contract or in the alternative for refund of the advance

amount as prayed for and consequently dismissed the

suit of the plaintiff. The plaintiff aggrieved by the

dismissal of suit, has filed this appeal.

4. Heard learned counsel for the plaintiff and

learned counsel for the defendants.

5. Learned counsel for the plaintiff submits that

defendant No.1 had executed an agreement of sale

and received advance amount of Rs.3,00,000/- and

executed the receipt marked at Ex.P2 and P3. He

submits that the Trial Court has committed an error in

not passing the decree for specific performance of

contract or alternative relief of refund of advance

amount. He submits that in order to prove Ex.P2 and

P3, plaintiff has examined one witness as PW-2. The

Trial Court without considering the evidence of PW-2,

has recorded a finding against the plaintiff. He

submits that the judgment and decree passed by the

Trial Court is perverse and arbitrary and same is liable

to be set aside. Hence on these grounds, he prays to

allow the appeal.

6. Per contra, learned counsel for the

defendants submits that plaintiff has failed to prove

that the plaintiff has paid the advance amount of

Rs.3,00,000/- to defendant No.1. He further submits

that the defendants have denied the execution of

Ex.P2 and P3. Plaintiff has not proved the contents of

Ex.P2 and P3. He further submits that plaintiff has

not produced any records to show that as on the date

of execution of agreement of sale, plaintiff-Trust had

got sufficient funds in the Bank for purchasing the suit

property. He further submits that PW-1 has clearly

admitted that as on the date of execution of alleged

agreement of sale, the plaintiff - Trust had no funds in

the bank. He submits that the plaintiff-Trust had no

capacity to purchase the suit property. Hence, the

question of paying the advance amount of

Rs.3,00,000/- does not arise. Hence he submits that

the judgment and decree passed by the Trial Court is

just and proper and does not call for any interference.

Hence he prays to dismiss the appeal.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

     8.        The    following     points     arise   for    my

consideration:

(1) Whether the plaintiff proves that the defendants 1 to 5 had executed agreement of sale dated 10.09.2004 in favour of the plaintiff for consideration amount of Rs.13,75,000/-?

(2) Whether the plaintiff proves that plaintiff has paid an advance amount of Rs.3,00,000/- to the defendants?

(3) Whether plaintiff proves that plaintiff was ready and willing to perform its part of contract?

(4) Whether the plaintiff proves that the impugned judgment and decree passed by the Trial Court is perverse and arbitrary and same is liable to be set aside?

(5) What order or decree?

9. Point No.1: It is the case of the plaintiff that

defendant No.1 is the owner of the suit schedule

property and he was in need of money. Accordingly,

defendants offered to sell the suit schedule property

for a consideration of Rs.13,75,000/-. Plaintiff-Trust

agreed to purchase the said land and accordingly paid

advance amount of Rs.3,00,000/- to the defendants

and defendants have executed receipt at Ex.P2 and P3

for having received and advance amount. Plaintiff in

order to prove the same, examined its President as

PW-1. He has reiterated the plaint averments in his

examination-in-chief. In the course of cross-

examination, PW-1 has stated that he has an annual

income of Rs.9,00,000/- and that he and his wife are

the trustees to the plaintiff-Trust. He also stated that

at the time of agreement of sale, defendants 1 and 2

along with their children were present and that the

Trust had a bank account and income tax was also

paid by him. He has stated that the Trust was

registered in February 2005. He also admits that at

the time of execution of alleged agreement of sale on

10.09.2004, the Trust was not registered. Plaintiff

issued cheque towards advance amount. On

10.09.2004, there was no sufficient fund in the said

account and hence the cheque was dishonoured for

want of "Insufficient funds". He admits that the

cheque which was issued in the name of defendant

No.1 was dishonoured. He has stated that he gave

cash to defendant No.1 and later on stated that he

has not given cash. He also admits that he has

written a letter to the Bank not to disburse cash if

cheque is dishonoured and also admitted that there

was no sufficient funds and also admitted that

defendants 6 and 7 have purchased the property.

After purchase they have invested huge amount and

developed the suit schedule property and also admits

that no such Trust was in existence prior to

10.09.2004 i.e., as on the date of execution of alleged

agreement of sale. He also admits that the cheque

was given in the name of a single person on behalf of

all the defendants. He also admits that the Trust was

not having bank balance to honour the cheque. The

plaintiff-Trust came into existence on 10.09.2004, but

the Trust deed was registered on 19.02.2005. He has

also stated that he does not know how much money

was there in the account of Subramanian and

admitted that there was no amount of Rs.2,50,000/-.

He has stated that an amount of Rs.1,00,000/- was

drawn from the account of his mother-in-law on

01.10.2004 and there was no account in the name of

plaintiff.

10. One Hanumanthaiah was examined as PW-

2. He has stated that defendants have offered to sell

the suit land to the plaintiff for a consideration of

Rs.13,75,000/- and he was present at the time of

execution of agreement of sale i.e., Ex.P1. He has

deposed that on the said date, defendant received

cheque of Rs.2,50,000/- and agreed to receive the

balance consideration amount. Since the cheque

would take a minimum of 10 days, defendant No.1

requested the plaintiff to pay cash. That plaintiff paid

a sum of Rs.2,00,000/- on 14.09.2004 and

Rs.1,00,000/- under receipt dated 01.10.2004, in his

presence. Later on Subramanyam informed that

defendants have not approached him for completing

the sale transaction. In the course of cross-

examination he has stated that he does not know

where the plaintiff-Trust is situated and also do not

know the Trustees and he has also not seen the

plaintiff-Trust and does not know the transaction of

the Trust and he admits that he is the close friend of

the President of the plaintiff-Trust. He has clearly

admitted that the cheque was not issued on behalf of

the Trust, but Subramanyam issued the cheque and

he has not seen the cheque.

11. Defendant No.1 was examined as DW-1 and

also examined 3 witnesses as DWs.2 to 4. DW-1 has

reiterated the contentions made in the written

statement in his examination-in-chief.

12. From the perusal of the oral and

documentary evidence of the parties, it is very clear

that the plaintiff himself has admitted that there was

no sufficient fund with the plaintiff-Trust as on the

date of alleged agreement of sale even though cheque

was issued and also admitted that the Trust was

registered after condoning delay in the year 2005.

Admittedly, no consideration was passed to defendant

No.1 as on the date of execution of agreement of sale.

Ex.P1 clearly shows that both the parties have entered

into the agreement at Bangalore as per the cause-title

of the agreement of sale. PW-1 has admitted that the

amount was drawn and paid from the account of his

mother-in-law at Bangalore. PW-2 has stated in the

cross-examination that plaintiff paid cash to defendant

No.1 at Tumkur. PW-1 and PW-2 have taken different

versions. From the perusal of the evidence of PW-1

and PW-2, it is clear that the plaintiff-Trust had no

sufficient fund as on the date of execution of alleged

agreement of sale for purchasing the suit property.

The plaintiff-Trust was registered in the month of

February 2005 and alleged agreement of sale was

executed on 10.9.2004 i.e., much prior to the

execution of agreement of sale. As on the date of

execution of agreement of sale there was no

registration of Trust. The said Trust was not in

existence. The plaintiff issued a cheque towards

advance amount in favour of defendant No.1. The

said cheque was dishonoured on the ground of

"insufficient fund". PW2 admits that cheque was not

issued on behalf of the petitioner-Trust. The plaintiff

has failed to prove the execution of agreement of sle

and payment of advance amount. As per section 20 of

Specific Relief Act granting relief of specific

performance is discretionary. It would be granted to

the person who come to the Court with clean hands.

From the perusal of the records, the plaintiff has not

come to the Court with clean hands. Thus the plaintiff

is not entitled for discretionary relief. In view of the

above discussion, I answered point No.1 in the

negative.

13. Point No.2: It is the case of the plaintiff

that plaintiff has paid advance amount of

Rs.3,00,000/- as per Ex.P2 and P3. Defendants have

denied the execution of Ex.P2 and P3. PW-2 has

clearly admitted that as on the date of execution of

the agreement of sale, the plaintiff-Trust had no

sufficient money in the bank and the cheque issued

was dishonoured and it is contended that PW-1 has

borrowed the money from his mother-in-law and paid

cash to defendant No.1 and defendants have executed

Ex.P2 and P3. At the cost of repetition, plaintiff has

admitted that as on the date of execution of

agreement of sale, the plaintiff-Trust had no sufficient

fund in the bank and on the contrary plaintiff has

admitted that he borrowed money of Rs.1,50,000/-

from his mother-in-law and also Rs.1,00,000/- from

Subramanyam. In order to prove that PW1 has

borrowed money from his mother in law and

Subramanian, PW-1 has neither examined his mother-

in-law nor said Subramanyam. Further no records are

produced to show the alleged money was lent by the

aforesaid persons to PW1. The plaintiff has produced

copy of income tax returns marked at Ex.P16 and

Ex.P17. Ex.P16 in return of income for the

Assessment year 2005-2006, it discloses that plaintiff-

Trust has paid a sum of Rs.3,00,510/- to

Revanasiddaiah and in Ex.P17 return of income tax for

the Assessment year 2006-2007, it discloses that

plaintiff-Trust paid a sum of Rs.3,81,607/-. It is the

case of plaintiff that plaintiff paid a sum of Rs. 3

Lakhs, but Ex.P.16 and P.17 does not tally the figure

mentioned by the plaintiff in the agreement of sale

and in Ex.P2and P3. The documents produced by the

plaintiff is inconsistence. From the perusal of the

records it creates a doubt about the payment of

alleged advance amount by plaintiff to diffident No1.

In view of the above discussion, plaintiff has failed to

prove that plaintiff has paid a sum of Rs.3,00,000/- as

advance amount to the defendants. Hence point No.2

is answered in the negative.

14. Point No.3: It is the case of the plaintiff

that defendants have agreed to sell the suit schedule

property and plaintiff got issued legal notice calling

upon the defendants to perform their part of contract.

Defendants replied to the said legal notice. Plaintiff

has not produced any records to show that plaintiff

had the financial capacity to purchase the suit land

and also not produced any record to show that the

plaintiff had sufficient fund to purchase the said land.

PW-1 has clearly admitted that plaintiff-Trust had no

sufficient fund in the bank for purchasing the

property. Mere issuing of legal notice is not sufficient

to prove that the plaintiff was/is ready and willing to

perform his part of contract. The plaintiff has failed to

prove that plaintiff was/is ready and willing to perform

its part of contract. Hence I answer point No.3 in the

negative.

15. Point No.4: The Trial Court after

considering the entire material on record was justified

in dismissing the suit of the plaintiff. I do not find any

grounds for interference with the impugned judgment

and decree passed by the Trial Court. Accordingly

point No.4 is answered in the negative.

16. Point No.5: In view of the above discussion,

I proceed to pass the following:

ORDER

The appeal is dismissed.

SD/-

JUDGE

RD