Smt Meena D Thakur vs Sri L Balakrishnama Naidu
2022 Latest Caselaw 5548 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF MARCH, 2022

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

     WRIT PETITION No.31328 OF 2017 (GM-CPC)

BETWEEN:

Smt. Meena D. Thakur
Aged about 64 years,
W/o. Sri. Dilip K. Thakur,
R/o. No.16629, Hampton Court
Cerritos, California, USA.

Rept. By her GPA Holder,
Sri. Pradeep D. Khanolkar
R/o. No.784, 34th Cross,
10th Main, 4th Block,
Jayanagar, Bengaluru - 560 011.
                                      ..    Petitioner

(By Sri. G.K. Kulkarni, Advocate)

AND:

Sri.L. Balakrishnama Naidu
S/o. L. Guruppa Naidu
Aged about 55 years
Sharavanti Shelters,
Sharavanthi Chambers,
No.290/41, 10th Main,
38th Cross, 5th Block,
Jayanagar, Bengaluru-560 041.

                                           .. Respondent

(By Sri.B.S. Radhanandan, Advocate)
                                                  W.P.No.31328/2017
                                 2


                                ****
      This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue a writ of certiorari, grant
an order, direction or writ in the nature of certiorari quashing the
orders passed as per Annexure A dated 21-09-2016 on IA.II by
the    LIX    Additional    City    Civil  Judge     (CCH-60)      in
O.S.No.10525/2015 as illegal and contrary to law, etc.

      This Writ Petition coming on for Preliminary Hearing in 'B'
Group, through Physical Hearing/Video Conferencing Hearing,
this day, the Court made the following:

                            ORDER

The present petitioner as a plaintiff instituted a suit in

O.S.No.10525/2015, in the Court of the LIX Additional City

Civil and Sessions Judge, Bangalore City (hereinafter for

brevity referred to as "the Trial Court") against the present

respondent, for recovery of the alleged sum of `34,50,092/-

which is said to be inclusive of the alleged balance due of

agreed amount of a sum of `25,89,000/-.

2. The defendant entered his appearance and filed his

Written Statement. Thereafter, the plaintiff filed I.A.No.II

under Order XII, Rule 6 of the Code of Civil Procedure, 1908

(hereinafter for brevity referred to as "the CPC") seeking

passing of a judgment on the alleged admission, said to W.P.No.31328/2017

have been made by the defendant in the Written Statement

filed by him.

3. It was contended by the plaintiff in the said

application that, the defendant since has admitted in his

Written Statement, that he is due in a sum of `25,89,000/-

payable by him to the plaintiff after getting the two tenants

vacated from the suit schedule premises and since the two

tenants have vacated, the defendant is liable to pay the

said amount. An admission to that effect is also made in

the Written statement.

4. However, the Trial Court by its order dated

21-09-2016 rejected the said interlocutory application -

I.A.No.II. Aggrieved by the same, the plaintiff in the Trial

Court is before this Court as a petitioner.

5. Learned counsel for the petitioner (plaintiff) in his

argument submitted that, when the defendant in his Written

Statement has clearly admitted that, he was withholding a

sum of `25,89,000/- on the condition of repaying the same W.P.No.31328/2017

after the two tenants vacate the premises and also since

the defendant has admitted that those two tenants have

vacated the premises, he is liable to pay the admitted

withheld amount of a sum of `25,89,000/-, as such, the

Trial Court ought to have allowed the application of the

petitioner and drawn decree on the admitted facts.

6. Per contra, learned counsel for the respondent

(defendant) submits that, there is no such alleged

admission in the Written Statement, on the other hand, in

the very Written Statement, it is the defendant who has

made it clear that, though he has issued a letter dated

03-01-2013, acknowledging the due amount of a sum of

`25,89,000/-, however, on the very same day, since the

plaintiff refused to execute the registered Sale Deed, unless

the said amount is also paid and the alleged total sum of

`60,00,000/- is passed on to her, the defendant was

constrained to pay the entire sum of `60,00,000/- including

the said balance sum of `25,89,000/-, as such, the Trial

Court has rightly observed that the alleged claim amount of W.P.No.31328/2017

`25,89,000/- is not an admitted fact by the defendant and

thus the Trial Court has rightly rejected the I.A.No.II filed

by the plaintiff.

7. So far as the writ petition is concerned, the learned

counsels from both side do submit that the defendant had

entered into an agreement for purchase of immovable

property from the plaintiff for total consideration of a

particular sum. However, regarding the payment of the

alleged balance sum of `25,89,000/-, the defendant had

withheld said amount initially. According to the plaintiff,

the said amount has not been paid to her till date, but

according to the defendant, the said amount has already

been paid to her before she executed the registered Sale

Deed in favour of the defendant. In that regard, the

relevant portion of the pleadings of the parties are

reproduced herein below.

The plaintiff in her plaint in para-6 has stated as

below:

W.P.No.31328/2017

"It is submitted that, true to the tenor of understanding and talks, the plaintiff came over to Bengaluru during January 2013 for the purpose of registration of suit schedule property. It is submitted that the defendant who had voluntarily undertaken to get the tenants vacated at his cost, but at the last moment of registration pleaded that he will withhold `25,89,000/- (Rupees Twenty Five Lakhs Eight Nine Thousand Only) out of the agreed sale consideration price and will pay this amount i.e. `25,89,000/- only after he gets the tenants vacated. Although, the plaintiff did not agreed for this deflecting act of the defendant, at the intervention of well wishers, the defendant immediately executed an autographic letter dated 3-1-2013 undertaking and agreeing to release this amount of `25,89,000/- (Rupees Twenty Five Lakhs Eighty Nine Thousand Only) once the occupied tenants are got vacated...."

6. In response to the said plaint averment of the

plaintiff, the relevant portion of the Written Statement filed

by the defendant at paragraphs 6(g) and 6(h) are re-

produced herein below:

6(g) The plaintiff left the office and strangely in the early morning, the plaintiff called the W.P.No.31328/2017

Defendant and confronted that she is leaving United States of America on 5th of January 2013 and if the sale deed is not executed before that she will not be able to come back to India till next December 2013 and hence the Defendant was cornered by the plaintiff. However the plaintiff came to the office of the Defendant and on mutual negotiation the Defendant agreed to withhold a sum of Rs.25,89,000/- out of the cash portion of Rs.60,00,000/- and hence wrote a letter on 3.1.2013 that a sum of Rs.25,89,000/- would be paid after the tenants vacate the Schedule Property.

6(h) After receiving the letter, the registration was fixed in the afternoon at 1 PM. When the Plaintiff and Defendant reached the office of the Sub- Registrar, JP Nagar, Bangalore, at 12.30 pm on 3.1.2013 the Plaintiff started changing her version and refused to Rs.34,11,000/- brought by the Defendant and insisted for entire payment of Rs.60,00,000/- or otherwise she would not execute the sale deed. She had also prepared a receipt and asked the Defendant to pay Rs.60,00,000/- and she would sign the receipt which is already prepared by her otherwise she would go back without executing the sale deed. In fact on the mutual discussion only the said amount was withheld the said amount of Rs.25,89,000/- was withheld and the vacant W.P.No.31328/2017

possession was shown as delivered to the Defendant under the Sale deed itself. Hence without any option the Defendant was constrained to pay the said sum of Rs.25,89,000/- also totally amounting to Rs.60,00,000/-. The Plaintiff has also signed the receipt which was prepared by her confirming the receipt a sum of Rs.60,00,000/- by way of cash. The same would be produced by the defendant at the time of evidence. But the letter dated 3.1.2013 handed over by the Defendant to the Plaintiff in the morning of 3.1.2013 in the office of the Defendant was retained by the GPA Holder of the plaintiff and since the same was of no relevance the said letter dated 3.1.2013 was ignored by the Defendant."

Admittedly, the above extracts are the pleadings of

the plaintiff in the plaint and the alleged admission of the

defendant in the Written Statement, as submitted in this

writ petition by the petitioner (plaintiff).

7. No doubt in her plaint, the plaintiff has stated that

the defendant has withheld a sum of `25,89,000/- out of

the agreed sale consideration price and had agreed to pay

the said amount after he (defendant) gets the tenants

vacated, but according to the plaintiff, the tenants have W.P.No.31328/2017

now been vacated from the premises, therefore, the

defendant is liable to pay the said amount now, in which

regard, there is an admission from the defendant in the

Written Statement filed by him. The alleged admission

which is also extracted as paragraphs 6(g) and 6(h) of the

Written Statement as above, would clearly go to show that,

at the first instance, the defendant in his Written Statement

at paragraph 6(g) has stated that, on mutual negotiation

the Defendant agreed to withhold a sum of `25,89,000/-

out of the cash portion of `60,00,000/- and hence, wrote a

letter on 03-01-2013 that a sum of `25,89,000/- would be

paid after the tenants vacate the Schedule Property.

8. The respondent herein (the defendant) does not

deny that subsequent to the agreement, the tenants were

also got vacated. However, para-6(h) of the Written

Statement, the extract of which is also reproduced

hereinabove, would go to show that, in his very pleading in

the form of Written Statement, the defendant has clearly

mentioned that though he had initially retained a sum of W.P.No.31328/2017

`25,89,000/- agreeing to pay the same after the defendant

gets the vacant possession, however, since the plaintiff

refused to execute the Sale Deed on 03-01-2013 and

demanded for the entire payment of `60,00,000/- including

the withheld amount of a sum of `25,89,000/-, he

(defendant) was constrained to pay the said amount of

`25,89,000/- also, thus totally amounting to a sum of

`60,00,000/-. The defendant has also stated that in that

regard, the plaintiff has also signed a receipt, confirming

the receipt of a sum of `60,00,000/- by way of cash and

the same would be produced by him (defendant) at the time

of evidence. He has further stated that, however, the

letter executed by the defendant on 03-01-2013 which was

on the very same morning, acknowledging the alleged due

amount of `25,89,000/- was retained by the General Power

of Attorney holder of the plaintiff and that since the same

was of no relevance, the defendant ignored the same.

9. By this above pleading, the defendant, though

initially has admitted that, he had retained a sum of W.P.No.31328/2017

`25,89,000/- payable to the plaintiff, but in the very next

paragraph has stated that, even the said amount was also

paid by him to the plaintiff on the very same day, under

certain circumstances. Thus there is nothing which can be

called as an admission of liability made by the defendant

towards the plaintiff of a sum of `25,89,000/-. That being

the case, when there is no specific admission, the question

of drawing a decree on the alleged admitted fact does not

arise. In such a circumstance, since the Trial Court has

rightly rejected the interlocutory application - I.A.No.II filed

by the plaintiff, holding that there is no such admission by

the defendant, as alleged by her, I do not find any reasons

to interfere in it.

Accordingly, the writ petition stands dismissed.

Sd/-

JUDGE

BMV*