schedule property for a sale consideration of Rs.37,18,000/-.
registered Sale Deed within three months thereafter.
schedule property. The suit schedule property was
encumbrances. The plaintiff was ready and willing to
07.04.2014. On 27.12.2016, the plaintiff paid a further sum
of Rs.6,00,000/- towards the balance sale consideration.
agreement. Consequently, the plaintiff issued a legal notice
their part of the contract. Despite the service of the notice,
the defendants did not comply with the same. On these
4. The defendants, on being served with notice,
The defendants contended that the plaintiff had
instituted O.S.No.326/2015 before the I Additional Civil
Judge, Shivamogga on the same Sale Agreement dated
07.04.2014. In the said suit, the defendants contended that
the agreement was a created document in which the plaintiff
had not acquired any manner of right or interest. Thereafter,
the suit was dismissed for default as per Order dated
25.06.2018. Therefore, the question of filing another suit on
the same set of documents before the trial Court is not
permissible in law.
It was contended that the current suit was instituted
after a lapse of three years from date of denial of the
Agreement of Sale in O.S.No.326/2015. Therefore, the
current suit is barred under Law of Limitation. Further,
another alleged Sale Agreement dated 27.12.2016 is not
tenable in the eye of law, because at that time
O.S.No.326/2015 was pending for consideration before the
Civil Court. It was also contended that the averments
regarding Sale Agreement dated 23.12.2016 and payment
of Rs.6,00,000/- is purely a personal transaction unrelated
to suit transactions.
It is contended that the defendants have no intention
to sell the suit schedule property and the property is not an
independent property of the defendants. Further, the suits
for partition in O.S.No.95/2011 and O.S.No.96/2011 were
pending. The matter is also pending before this Court in RFA
No.1720/2017 for adjudicating the rights of the defendants.
It is further contended that the transactions alleged by
the plaintiff are purely commercial in nature. The trial Court
has no jurisdiction to entertain the present suit under
Sections 2 and 9 of the Commercial Courts Act, 2015. It is
further contended that the plaintiff had approached the
defendants requesting them to clear certain documents
before the Revenue Authority. When the defendants visited
the Sub-Registrar's Office, they came to know about the
Sale Agreement alleged to have come into existence.
Therefore, it is contended that the said agreement is a
forged one.
5. The trial Court framed the following issues for
consideration:-
"1. Whether the plaintiff proves defendants have
executed on agreement of sale dated: 07-04-
2014 and offered to sell suit schedule
property for valid consideration of
Rs.37,18,000/-?
2. Whether the plaintiff prove as on the date of
agreement he has paid Rs.9.00 lakhs on
07.04.2014 and Rs.6.00 lakh on 27.12.2016
to the defendants as part sale consideration?
3. Whether the plaintiff proves he was and has
been always ready and willing to perform his
part of contract?
4. Whether the defendants prove plaintiff has
filed O.S.No.326/2015 based on agreement
dated: 07-04-2014 and on account of
dismissal of said suit for default, the present
suit is barred by law of limitation?
5. Whether the plaintiff is entitled for a decree
of specific performance of contract?
6. What order or decree?"
6. After considering the evidence of the plaintiff,
who examined himself as PW.1 and got marked the
documents as Exs.P1 to Ex.P10, and the defendant No.1
who had examined himself as DW.1 and marked the
documents as Exs.D1 to D18, the trial Court answered
Issues No.1 to 3 and 5 in the negative and Issue No.4 in the
affirmative. The suit was accordingly dismissed.
7. The learned counsel appearing for the appellant
submits that the parties had entered into an agreement for
sale and an amount of Rs.9,00,000/- was paid as advance
on 07.04.2014. Further, a sum of Rs.6,00,000/- was paid by
Cheque on 27.12.2016. It is contended that the execution
of the agreement having been proved, the trial Court erred
in rejecting the contentions of the plaintiff and dismissing
the suit. It is contended that if the payment of the second
Cheque on 27.12.2016 and the legal notice dated
18.06.2019 are taken into consideration, the suit filed on
09.09.2019 was well within time. This aspect was
completely ignored by the trial Court.
8. It was the plaintiff's contention that though the
defendants had obtained an amount of Rs.15,00,000/-
towards the sale consideration, they had not made any
arrangements for execution of the Sale Deed and obtaining
the balance from the appellant.
9. The learned counsel appearing for the
respondents/defendants on the other hand, contended that
it is clear from a reading of Ex.P1 that the time provided for
executing the Sale Deed in terms of the agreement was
three months. It is submitted that the appellant admittedly
did not tender the balance amount or require the execution
of the Sale Deed within the period of three months from the
date of Agreement, that is, 07.04.2014 and that the suit
filed in the year 2019 was therefore hopelessly time-barred.
10. We have considered the contentions advanced.
The only question that arises for consideration in this appeal
is:-
"Whether the findings of the learned Single
Judge require interference in the appeal?"
11. We notice that the Agreement dated 07.04.2014
is a registered Agreement for Sale of the suit schedule
property. The agreement records that an amount of
Rs.9,00,000/- has been paid as advance on 07.04.2014 and
that the balance amount of Rs.28,18,000/- would be paid
within three months after providing the documents related
to the properties to the respondent. The Agreement between
the parties was to provide the documents relating to the
properties, receive balance consideration and to register the
Sale Deed within a period of three months. Thereafter, the
appellant filed O.S.No.326/2015 before the I Additional Civil
Judge, Shivamogga. Ex.D6 is the order sheet, plaint and
written statement in the said Original Suit. The said Original
Suit was also filed on the basis of the very same document,
that is, Ex.P1 dated 07.04.2014. It was contended in the
said suit that on 22.04.2015, the plaintiff was informed that
the defendants are attempting to sell the suit properties. On
the said cause of action, the earlier suit was laid for
permanent injunction restraining the defendants, their heirs
and representatives from breaching the Agreement of Sale
dated 07.04.2014. The respondents herein entered
appearance in the said suit and denied the execution of the
Agreement. Thereafter, the suit was dismissed for default on
25.06.2018. It is further contended that a reply notice dated
03.07.2019 to the legal notice dated 18.06.2019 had been
sent by the respondents specifically pointing out these facts.
12. The trial Court considered the contentions and
found that the Agreement was one executed on 07.04.2014.
The time provided for executing the Sale Deed was three
months from date of the agreement. It was found that in the
year 2015, the plaintiff had filed a suit against the
defendants seeking permanent prohibitory injunction on the
basis of the Agreement of Sale dated 07.04.2014. The
defendants in the said suit had filed written statement on
29.07.2015, denying the agreement. The suit was thereafter
dismissed for default on 25.06.2018. Therefore, evidently
the plaintiff had clear notice of the intention of the
defendants not to honour the Sale Agreement dated
07.04.2014 when he filed the earlier suit and definitely on
29.07.2015, when the written statement was filed. The trial
Court also noticed that the allegation in Ex.D6 - order sheet,
plaint and written statement, is that the defendants were
attempting to sell the property and the plaintiff had notice of
the said fact on 22.04.2015 as pleaded in the earlier suit. If
the said date of notice of the intention of the defendants not
to honour the Agreement is taken into account, the suit
ought to have been filed on 21.04.2018. However, the suit
having been filed only on 09.09.2019, was hit by the Laws
of Limitation.
13. Though, the plaintiff attempted to set up a case
of a further payment having been made on 27.12.2016
towards the sale consideration, the trial Court has clearly
held that no material whatsoever has been produced to
show that any such payment has been made by way of
Cheque or otherwise on 27.12.2016 towards the sale
consideration in respect of the Suit Schedule Property.
14. Further, we notice that the defendants had
produced documentary proof in support of the contentions
raised by them. The copies of plaint, order sheet and
written statement in O.S.No.327/2015 in the Court of the I
Additional Civil Judge, Shivamogga were produced and
marked by the defendant. However, no material whatsoever,
except the original agreement for sale and legal notice were
produced by the plaintiff. The oral evidence of the parties
have also been clearly considered by the trial Court. It is
thereafter, that it has been concluded that the appellant
admittedly had notice of the intention of the defendants not
to honour the Agreement for Sale as early as on
22.04.2015. The suit was therefore dismissed as being
barred by limitation.
15. After an earnest consideration of the materials on
record and the judgment under appeal, we find that the
reasoning of the trial Court is only to be sustained. The
appeal fails and the same is accordingly dismissed.
No order as to costs.
All pending interlocutory applications shall stand
disposed of.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
cp*
