Karnataka High Court
Smt. Malliga vs Althaf on 3 July, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3rd DAY OF JULY, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
COMMERCIAL APPEAL NO.265 OF 2023
BETWEEN:
1. SMT. MALLIGA
SINCE DECEASED, REPRESENTED BY LR'S
1(a). SRI. DHANPAL
S/O LATE N. SUBRAMANYA
AGED ABOUT 72 YEARS
RESIDING AT No.1/1, 3RD CROSS
MUNESHWARA BLOCK, P.G. HALLI
BENGALURU-560 003
1(b). SRI. D. CHANDRASHEKAR
S/O DHANPAL
AGED ABOUT 41 YEARS
RESIDING AT No.1/1, 3RD CROSS
MUNESHWARA BLOCK, P.G. HALLI
BENGALURU-560 003
1(c). SMT. JYOTHI G.
D/O DHANPAL
W/O GNASHEKAR
AGED ABOUT 40 YEARS
RESIDING AT No.1/1, 3RD CROSS
MUNESHWARA BLOCK, P.G. HALLI
BENGALURU-560 003
1(d). SMT. K. MAHESWARAI KRISHNSAMY
D/O DHANPAL
W/O KRISHNSAMY
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2
AGED ABOUT 38 YEARS
RESIDING AT No.20/3
MAHESHWARI NILAYA
PHASE '6', SAI SAMRUDHI LAYOUT
BEGIHALLI, JIGANI
BENGALURU-560 105
...APPELLANTS
(BY SRI. ANIL SHEKAR K.S., ADVOCATE)
AND:
ALTHAF
S/O MEHABOOB MIA
AGED ABOUT 51 YEARS
R/AT No.105, 1ST CROSS
NANJAPPA LAYOUT
VIDYARANYAPURA
BENGALURU-560 097
...RESPONDENT
(BY SRI. SHIVAYOGI B. HALLUR, ADVOCATE FOR C/R)
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1)(1-A) OF THE COMMERCIAL COURTS ACT, 2015, PRAYING
TO (a) CALL FOR THE CONCERNED RECORDS AND SET ASIDE
THE JUDGMENT AND DECREE DATED 22.05.2023 PASSED BY THE
LXXXVII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
IN COM.O.S.No.4029/2017 BY ALLOWING THE ABOVE APPEAL
WITH COST IN THE INTEREST OF JUSTICE AND EQUITY AND
ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.06.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE DR. JUSTICE K.MANMADHA RAO
-
3
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This appeal has been filed by the appellants against the
judgment and decree passed in Com.O.S.No.4029/2017
dated 22.05.2023 passed by the LXXXVII Additional City
Civil and Sessions Judge at Bengaluru (CCH-88)
('Commercial Court' for short).
2. We have heard Shri. Anil Shekar K.S, learned
counsel appearing for the appellants and Shri. Shivayogi B.
Hallur, learned counsel appearing for the respondent.
3. The contentions of the appellants are as follows:-
The defendant in a suit for specific performance of a
Joint Development Agreement ('JDA' for short) dated
08.05.2013 is the appellant herein. The appellant was the
owner in possession of the property having a total extent of
30 feet x 70 feet situated on 3rd Cross, Muneshwara Block,
Bengaluru. The property was mortgaged to the Padmashree
Credit Co-operative Society. The JDA was entered into by
which the respondent agreed to construct a residential
apartment on ground and three floors consisting of eight
-
flats in the portion of the property measuring 30 feet x 50
feet as consideration, the respondent agreed to pay
Rs.1,42,00,000/- to the appellant in consideration of the
permission to put up the apartment in the said portion of the
property. Further, it was agreed that the respondent would
also put up a residential house consisting of ground plus
three floors, with each floor measuring 600 sq. ft. in the
remaining property measuring 30 feet x 20 feet. It was also
agreed that the cost of construction and expenditure to
obtain permissions to put up the construction of the
residential house would be deducted from the agreed
consideration of Rs.1,42,00,000/-. A schedule for payment
of the amounts was also provided in the agreement. It is
stated in the plaint that the plaintiff paid a sum of
Rs.25,00,000/- to the Society by way of cheques and the
entire property mortgaged by the defendant was redeemed
by the plaintiff. However, GPA was not executed in favour
of the plaintiff as agreed. It was contended that the plaintiff
had paid a further amount of Rs.75,50,000/- by way of
Banker's cheque and demand drafts on different dates and
-
spent a sum of Rs.62,00,000/- for construction of the
building on the appellant's share of the land. It is submitted
that pursuant to the specific agreements between the
parties, the construction was made as one building
consisting of four one bedroom apartments, which fell to the
share of the land owner/appellant and four two bedroom
apartments, which could be sold by the plaintiff - builder.
However, after construction of the appellant's share of the
built-up area was complete, the appellant refused to perform
her contractual obligations. The plaintiff lodged a complaint
before the Vyalikaval Police Station on 10.11.2016 and an
injunction suit was filed by the appellant as
O.S.No.402/2017 before the City Civil Court, Bengaluru.
Further, the police complaints were also filed. It is
contended that the defendant also obtained an ex-parte
order of ad-interim temporary injunction against the plaintiff
by suppressing true facts and it has therefore become
necessary to seek the specific performance of the agreement
between the parties.
-
4. The appellant entered appearance and filed
written statement denying the contentions and stating that
she is the owner in possession and enjoyment of the house
property bearing BBMP Khata, PID No.99/106/1/1 of 3rd
Cross, Muneshwara Block, P.G.Halli, Bengaluru and that she
had filed a suit for permanent injunction as
O.S.No.402/2017 before the City Civil Court and there is an
order of injunction in force. It is contended that the
transactions between the plaintiff and the defendant were
only loan transactions and that all amounts except
Rs.5,00,000/- had been returned to the plaintiff. It is
contended that the plaintiff had obtained signed blank
cheques, blank e-stamp papers and white papers and had
created documents to harass the defendant and her family
members. The Commercial Court framed the issues,
considered the pleadings and the evidence adduced.
5. The issues framed by the Commercial Court read
as follows:-
-
"1. Whether the plaintiff proves that he had
entered into a Joint Development Agreement
with the defendant on 08.05.2013?
2. Whether the plaintiff further proves that, he
has constructed the apartment building on
the suit schedule property?
3. Whether the plaintiff further proves that he
has paid a sum of Rs.75,50,000/- to the
defendant?
4. Whether the plaintiff further proves that he
has complied with all the terms and
conditions of the Joint Development
Agreement dated 08.05.2013?
5. Whether the plaintiff further proves that he is
entitle for the suit relief?
6. Whether the defendant proves that the
plaintiff has approached the defendant in
order to help her financially for the purpose
of construction?
7. Whether the defendant proves that she has
paid the amount received from the plaintiff
along with interest and there is a balance of
Rs.5,00,000/- which is to be paid to the
plaintiff?
8. Whether the defendant proves that the
plaintiff has obtained certain documents from
the defendant and her family members such
as blank cheques of Kotak Mahindra Bank,
-
"E" Stamp Papers, signed white empty
papers?
9. Whether the defendant proves that she is in
possession of the suit schedule property?
6. The plaintiff/respondent herein got himself
examined as PW.1 and marked the documents as Exs.P.1 to
P132, while the GPA holder of the defendant/appellant
herein as well as her son were examined as DW.1 and DW.2
and Exs.D1 to D120 were marked.
7. After considering the contentions advanced, the
Commercial Court noticed that the JDA was dated
08.05.2013. The Commercial Court found on comparison of
the admitted signature of the defendant with the signature
in Ex.P1-JDA that the signatures are similar. The appellant's
husband who was examined as her GPA holder had admitted
his and his wife's signature in Ex.P1. Further, it was found
that the first complaint with regard to the execution of the
JDA on blank stamp paper was raised for the first time by
Ex.P10 on 20.05.2017. The Commercial Court also notices
that no such contention was taken by the appellant in her
-
plaint in O.S.No.402/2017. Further, DW.1 had admitted
that they had not stated about taking of their signature on
blank papers in any earlier proceedings including the Police
complaints given by them. It was therefore found that
Ex.P1-JDA had been duly executed by the appellant.
Further, the claim of the plaintiff that he had paid an
amount of Rs.5,00,000/- to the defendant's husband-
Dhanpal on 23.02.2013 and had made the payments to the
Padmashree Credit Co-operative Society were held to be
proved by deposition of the plaintiff as supported by the
statement of account maintained by the plaintiff in the State
Bank of Mysuru, Boopasandra Branch. The payments made
to the Commissioner, BBMP, on 08.04.2014, was also taken
into account by the Commercial Court to hold that the
contention that it was a credit transaction between the
parties could not be believed and that the JDA had been
entered into and acted upon by the parties. Accepting the
contentions of the plaintiff, the Commercial Court decreed
the suit with costs and directed the appellant to execute the
-
Sale Deed within two months. A permanent injunction was
also granted as sought for.
8. The learned counsel appearing for the appellant
submits that the appellant had obtained financial help for
the defendant to the tune of Rs.73,50,000/- for the purpose
of the construction of the building in her property. It is
stated that the amount was repaid on several dates in cash
and that it was on the signed blank cheque and signed e-
stamp papers which were obtained from the appellant as
security for the loan transaction that the JDA had been
executed. It is stated that the entire construction was
carried out by the appellant and that the contentions of the
plaintiff were liable to be rejected.
9. It is further submitted that the JDA does not
contain the schedule for construction of the apartments and
that the agreement is made in vague terms. There is no
clause in the agreement which mentions about execution of
sale deed. As there is no interest created for the builder in
the property, no relief for specific performance can be
-
granted as per Section 14(3)(c)(ii) of the Specific Relief Act,
1963. It is also submitted that the JDA, Completion
Certificate, Rental Agreement are all created and forged
documents. It is agreed by PW.1 himself that no signature
was taken on the date written in ink in the JDA. It is further
submitted that the appellant was financially capable of
bearing the cost of construction. The total cost of
construction was Rs.2.5 crores. Documents produced at
Exs.D34 to D.36 shows the financial capacity of the family of
the appellant.
10. The learned counsel appearing for the
respondent, on the other hand, contends that he had
obtained various permissions from BBMP towards
construction and has paid the entire sale consideration of
Rs.1,42,00,000/- as per the JDA and completed the
construction in the year 2015. It is further submitted that
the appellant took time by one or the other reason to put
her signature on the JDA and hence the respondent could
not obtain the signature as on the date which is written in
ink in the JDA. The appellant has signed on all pages of the
-
JDA. The respondent's signature in the last page shows that
the appellant has signed the JDA as the first party. It is
further stated that the appellant did not stand as a witness
in the Commercial Court, where a presumption would arise
that she had entered into the JDA, instead her GPA holder
was made a witness and it is clear that he has no knowledge
about the said JDA.
11. We have considered the contentions advanced.
We have also given our anxious consideration to the
pleadings and the oral and documentary evidence on record.
The only question we are called upon to consider is whether
the judgment and decree of the Commercial Court requires
an interference in this appeal in the light of the pleadings
and the evidence let-in. The JDA was one executed on
08.05.2013. It is the case of the plaintiff that the
construction was carried out in accordance with the
sanctioned plan which provided for one consolidated building
instead of two separate buildings. This aspect is not disputed
by the appellants either before the Commercial Court or in
this appeal. The Commercial Court had specifically come to
-
the conclusion that no complaint with regard to obtaining of
signatures in any blank e-stamp paper or plain paper was
ever raised by the appellant even before the Police when the
matter was raised for the first time. It is only in Ex.P10 legal
notice dated 20.05.2017 that such a contention is raised for
the first time, that too, when there were admittedly criminal
and legal proceedings between the parties before that date.
Even in the plaint in the injunction suit filed by her, the
appellant had not raised such a plea. Therefore, the
conclusion reached by the Commercial Court that the said
plea was an after thought and could not be accepted cannot
be said to be erroneous.
12. Further, the appellant did not choose to adduce
evidence and it was her GPA holder, who is her husband,
who had taken that stand. DW.2 in his cross-examination
had admitted that an amount of Rs.73,50,000/- was
received from the plaintiff. However, the contention was
that the said amount had been repaid to the plaintiff.
However, the defendants could not adduce any evidence to
show that they had the financial capacity to repay such huge
-
amounts out of their own funds. The plaintiff on the other
hand had adduced reliable evidence to show the payment of
amounts by way of cheque and cash. Further, the payment
of electricity, water and maintenance bills, the payment of
amounts towards obtaining necessary sanction from the
statutory authorities and payment of property tax as also
the bills in support of the claim with regard to cost of
construction of the building in the share of the defendant
have all been produced by the plaintiff before the
Commercial Court. The said oral and documentary evidence
has been scrupulously examined by the Commercial Court
and the Court has arrived at the conclusion that the JDA was
duly executed and that the amounts have been paid by the
plaintiff in pursuance thereof. The Commercial Court also
found that the contention of the appellant that substantial
amounts were repaid was not substantiated by any
evidence.
13. Further, the payment of the amounts was proved
by the plaintiff before the Commercial Court by producing
his Bank accounts which could not be discredited by the
-
appellant. The appellant also had admitted that an amount
of Rs.73,50,000/- had been paid by the plaintiff to her or
her husband but the contention was that the said amount
had been repaid in cash. The plaintiff had also succeeded in
adducing evidence before the Commercial Court to show
that substantial amounts had been spent by the plaintiff
towards the construction of the appellant's share of built-up
area in the building constructed on the property in question.
14. The condition in the JDA was for executing a
General Power of Attorney in favour of the plaintiff for the
purpose of selling the apartments constructed in the
plaintiff's share of the property. However, apparently it is
long after the construction was complete that the suit was
filed.
15. In the above factual situation, we are of the
opinion that the contention of the appellant that the decree
for specific performance could not have been issued cannot
be accepted. We are of the opinion that in the facts and
circumstances of the case and the material, which is on
-
record, the finding of the Commercial Court that the
appellant was liable to execute the GPA for the sale of
defendant's share of the property was indeed just and
proper. We find no ground to interfere in the appeal. The
appeal fails and the same is accordingly dismissed.
Pending interlocutory applications, if any, shall stand
disposed of.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(DR. K.MANMADHA RAO)
JUDGE
cp*
