DJTHETHGFICOURTWDFKARNATAKAlH'BANGALORE
DATED THIS THE 14?" DAY OF OCTOBER 2009fif-._
PRESENT 't'" ""
THE HON'BLE MR. JUSTICE MUN, KU_;"~'i)E\F'x:.:"_'v:'V"":: *
AND *. «
THE HON'BLE MR. JUSTICE C.R}.Kt?!"-tVRA'S\NAMAY.."t"'*--~_V°Y_:
REGULAR FIRST APPEALTNO. 275 O? 7:
BETWEEN: 4 % t 't V
M/S. Shanti Trust,
No.13, Jaipaknkhi Vikas Park,
Juhu Tara Road, _ -
Mumbai --- 400 049",
Represented by,its"TruStVeesI;~,__" '
( 1) Sri. Me no_h«a% 'r;¢u~RrTae:eed heft -.1.<__'na-"tri.
(2) Sri. Rajesh. ML:raivi¢§~h_a~r..__}<'ha.tri.
* _ »-- Appellant
(By Sri. H_.R, Ana"ntha..KriS'hnéa Murthy, Advocate)
'V « ...... ..
M/S'; E_'__E5'he_ §'<ta:w.;§ir-Tr.tJ
No.15, {3--awa7'Sj3_'V_v»Pa:eE Street,
:""*-'Mehr Hogse, 5-fo_r%t,,'
',_Mumbai 4 400 001,
"'*'--«RepreSentec$_.by its Managing Trustee
g=M4'rS..fgM .i\J".«..tiran i.
".ReSpondent
pt”tteemxfsrtie. Re. Appaiah Advocate)
V\ _ I
This RFA is filed under Section 96 of CPC against the
Judgement and Award dated 27.11.2001 passed in
O.S.No.3369/1988 on the file of the XI Additionai C.ity__:C§_vi|
Judge, Bangaiore, partly decreeing the suit
performance.
This RFA coming up for aclinis.s4iofii”‘-this:
KUMAR 3., deiivered the following. i if A l f V
3 u D G M
This is a plaintiff’s la-.o”peal’_VAagain—S\t.,Zthe Judgrnent and
Decree of -grant the decree for
damages. V V’ if ‘ l h
(2) For the convenience, the parties are
rfe’fe..r_reci..’:cif;C> théyl are~r–ef’erred in the Originai Suit.
is a famiiy trust. The defendant is a
‘£One Sri B.K. Srinivasan was the absolute
*4-«’.j’own’erA of sites bearing i\los.S1 to S4 of Rajamahal Vilas
li
Extension, Bangalore. The defendant — land developer
represented to the plaintiff that it had acquired j”u–nder
various Development agreements and contracts.f_en”teire’dy
into with M/s Kanché Corporation, the right
bearing l\ios.S1 to 54, Rajmahalzlé
constructing a rnultistoried residgntilal-compi’§vx’._Leaglglgedlllvasiiif»
Palace Orchard Apartments ground
floor and seven or more defendant aiso
represented thatali’ n’ece’s’sa.ry; entitlements
and authority building were
obtained. {It comlpiiyedj”wgith_Tth_e–mandatory requirements as
required unde’r__llaw.” no legai impediment for the
c4onstruct.ioni’of the”sai_d___t§ui|ding. The construction would
begin Va’ccordva’nce””-with the latest architecture. That every
woutd V:l*ul><urEous one equipped with ail modern
_jifconvgenience.g_ Further they made other representations.
'j..'_:'The:.pia:En"t_iff entered into a written contract on 2.2.1981 for
of fiat No.54 situated in 5"' floor in the
l R\/"
construction to be put up. The plaintiff paid in all sum of
Rs.2,63,500/~ being 90% of the sale price by
quarter of the year 1982. Possession has to
on or before 31.12.1982. By letter V
defendant informed the plaintiff that
occupation certificate togetherl*i:/vii’:”t.h ell’eCtric.aVl_;_.AlViiiiiva’te’r”‘§and”?
sewerage connections. The deféric1’anV’t..permfitttedVi to have
an inspection. On such that it was
not completed andI~£.uI’nfititffogr–:hu’m:aln”-ihaibitation. When
confronted, the piaintiff that the
residents preferred a writ petition in
the High Co’u’i=t:_’_’ way of a Public Interest
Lgtigatiolnfilopgposing “tlh:eV:____co:nstrtiction of 5″”, 6″‘ and 7″‘ floors
on’.__va.rie.us..:_g’rO:iVn”d.S. The High Court has held the said
1′”..__xconstruc’t~iionVas’.j§_I|egal and directed demolition. Against the
order); the defendant has preferred a SLP
‘i._’_’v”i\i_o;2’78f)/”3982 before the Supreme Court. The plaintiff and
h purchasers of the flats filed an undertaking before
k/..
the Supreme Court as prescribed. The defendant called
upon the plaintiff to pay a sum of Rs.98,951/..1,as.,_ a
condition precedent for taking delivery of
property. The plaintiff was not
building was not complete. The ljlggiiitiff
balance amount. Ultimately they
order of the High Court, directed”dVe’rno’l”i»t§.onT. TTTT-hevviisaid fact
was informed by the defendant’ and the other
persons who hap.,.g..,,,gt:akey,, vacate as the
Bangalore Cit)’; the three
floors. Un:der._ further performance of
contract exchange of legal notices,
theéyvplaivhtigffifiled a decree for specific performance
of’.;,on.tr’a.ct.,¢latedf”2.,_2.1981 or in the alternative for payment
Rs.’9..’S7,7v2(3,#§_as damages with 24% interest.
(4) After service of summons, the defendant entered
if’–«V.V’a’ppe.a~ra_h’Ce. They did not dispute the contract entered into
between the parties, the receipt of the amount by the
plaintiff, the litigation pending both in the High
Supreme Court and the orders passed
directing demolition, the steps takenbyth’_e”._BaVng’a’l_oVre~’.City
Corporation to demolish of 5″‘, 6″‘ and7:5’floorsin».rer’rns~~.of~.u
the orders of the Court. As agre’eiC:i::’;’i»they wgrec to pay it
back the money receiveclfby contract was
frustrated because of Court.
They contended’ of committing
breach of liability to pay the
damages. pay the amount which they
have receive’d”;*c:_’_’ ” V’ V C ‘p
(5)._§f<C)'niithe.Va'fo.revsaid pleadings, the trial Court framed
if "– plaintiff proves that it is a family
trustcreated under the Wiii dated 4.1.1980
it yygpaléiélleged? yr/l
Whether the suit is filed by competent
parties?
. Whether the plaintiff proves that he
along ready & willing to perform his”‘pafrt”‘o:f
the contract under the
2.2.1981?
Whether the clefendanth’-.,pi’o’Vves”‘that the
plaintiff did not the bigiantcieiopi sale price
to take possession of t_he”pr?op~e:frt§,kj1?.
Whether .éntit’ied to forfeit
the ‘
. entitled for the relief
of sper;_ifir_ pie-rf’orrn.a”rj.ce?
._’gN’riether ‘th_e’p’|ai’i1tiff is entitled for refund of
‘V ..___t«hé_A._tam_Qpnt?«… ….. ..
suit is barred by time?
. Whether the plaintiff is entitled to possession
‘W of suit property?
__}i0.To what relief?”
(6) The plaintiff in order to substantiate his claim,
examined Manohar Muralidhar Khatri as PW-1, produce.d*1A9
documents which are marked as Ex.P1 to
of the defendant, no evidence was”‘ad–d.uc’ed._.’.”:”fVTh:e~–‘.itria–iV
Court on appreciation of the
documentary evidence on record-..,h”e!.d issLieV_No’s.1f’,; Zmand 3 V
in favour of the plaintiff has proved the
contract between the parti’e_s_,’i’ =wiasbi’._ijeady and willing
to performi’-,his._part’of._:the”‘co’n–t_ract. The trial Court held the
defendant hascfaileditof’iiestablish the breach of contract by
tyheyplaintiff. It ailsioheyld that the defendant is not entitied
to’Vfo’rfei*t…th.e”an7io”u.nt in the facts of the case. The plaintiff
not”en’titied’.tothe reiief of specific performance. It aiso
..§_y’_:«h.eid_yVthat plaintiff is entitled for refund of the amount.
suit is not barred by time and plaintiff is not
. to possession of the property. Thus it decreed the
suit of the plaintiff for a sum of Rs.2,83,500/– with interest
at 10% per annum from the date of the suit till realisation.
The relief of specific performance of the
refused so also the relief of damages
plaintiff.
(7) Aggrieved by the said Dilecrvfeemof the
trial Court refusing to plaintiff has
preferred this aDP_£fal__- decree, the
defendant has to that extent
the decreegis fulA|Ay’l”sa«vt§sfiedilr’-..__T–herefore the subject matter
of this appeal whethetthe»t.pIVaint§rf is entitled to damages
a4_s..c|aimeéd irithe
(8)”–.Sr..i_V’ti~.lAi§”{.A Ananthakrishna Murthy, learned counsel
‘ “for the plaintiff/appellant contended
‘V”i»’V.”V..’;unsformrlately though specific plea was raised in the plaint
10
claiming a sum of Rs.6,74,220/– as damages being the
difference in the market value between the
agreement and date of suit, the trial Court
proper issue. Consequentiy the.__part’ies*~~’:c:0u’i~dV’*.Vnot” it
concentrate their attention on this aspect
have not lead sufficient evide’|”@#C”~~tsand”‘
Court also very casuaiiyhas the”saidvvEclaim in
the plaint and has rejec4tead”VT?ierefore he
submits this is a §fit’:Vc§:_ise should set aside
that portion of andrcii-r.eict’*:th~e trial Court to frame
appropriateissuesl~and:”givel_T’a..n’ opportunity to the parties to
lead evidencefiinii rvesp_e’ct said issues and then pass
a.ppropr.ia5te order: :Ei._/__en otherwise it was contended that
the__tri:ai~ Co–urtih.asv not properiy appreciated the evidence on
:7R,_Ag__rveCord,’didinlet’consider the judgment relied on by the
..l_igi’_;.pl4a~i.ntiff in~~su;ppvort of his contention and therefore in so far
4:~.Ta’S”th€:»Cl’t«leStiOi’1 of damages is concerned, the Judgment
E/i
(1)
(2)
12
Whether the Judgment of the trial Court in so far as
damages is concerned is vitiated for non-framing’g”~.of a
specific issue ?
Whether the finding of the trial Court on
of entitlement to damages is su_s.tai_nabl–e”in”liagwl”?
(11) The piea regarding
paragraph–17 of the piaint, whiChV:”r’eVadsi’as_’
“In the alternatiye, p$lia–i–n.t1iff'”states’th–at..~i§f it
is not possible to gra”i’it’a_ s.pe{cifiE’*«rjerformance of
the contract cgonsequenht-up.ong t.hvei”deC’isions of
the Hon’ble””‘i§:7l.iigh.”-_Co:u”i’t ‘:–“‘Kia.r.iiataka and
Supreme’ ‘Cijfi:-,1′ I’n*dti’a, the Commissioner
of thevv–.Corporatit:.n;».t’4h*e_:ri”the failure to obey the
terms o’F__the lies squarely with the
defendant’ construction of fiat No.54
four)..gA’on thlellifvifth floor of Paiace Orchards
illegal and not under valid
licences’,’.tihe9’breach of contract is deliberate and
wiiiui…”i_Piaintiff is subjected to great ioss and
hardshib and it is entitled to compensation and
Vii’-..d’amiages for fiagrarit breach of the contract.
li./
V A
13
Piaintiff is entitled to compensation under the
foiiowing heads:
a) Refund of the advance paidji ‘
Rs.2,83,5OO/– (Two Eakhs eight_ymtyhree_.’th’o~–tjSgaeri’dV”_ V
five hundred).
b) Difference in the pricefs,:_of_Ma fiatV__of_the
dimension, extent and nat_ue:r’e..:_a«s_y_ agereedve to? be
delivered possessio’ri–…_'”Qf_ to §h.e’~._Vp!iE§”i’ntiff DY the
defendant as on the date fbreaeci’i.ij_~off.. contract
and the agreved..:p’riceii_ Z:
There e:’tiieefprice in the real
estateeine fiatseebetween 1981 to
1988e(Niinete.éVerfa§i.Qiw.fV*-.:e:§.ne to Nineteen eightv
eight). parti-cuiasry:.ee-the prices of the flats in
Ra.j«aifia~ha| \}iia.s____f__:__&><ytension have sky rocketted.
_fi'iat\T_of«.._the nature, dimension and the
*—de-scfri-f5t«i..o"rieeV".nre1ferred to in the contract of sale
dated 2tiZ}R3,.9e81 (Two, Two, Nineteen eighty one)
in theagrea nearby the Rajamaha! Vilas Extension
V' apartnfient would cost more than Rupees Ten
eiaekhjs. Plaintiff has been subjected to serious
= «$1055, has lost many working days, subjected to
EV
14
great mental stress and strain on account of the
breach of the contract by defendant. PiaintiffVV.is._f’._
entitled to a compensation of
(Rupees Six lakhs, seventy~four thousand:
hundred and twenty only) on this”head–“_4’oe,i:n:gI.
difference between the market
the amount paid. In all, ~;jia.i_ntiff’ii-s”entitii’ev’d.,;to:a
sum of Rs.9,S’7,’720/-
seven thousand Se:ve«_n twevrlty
0rily).”
(12) Tra.V.é.rsii§g._~_ .t4’r:.,..g_1€:.gafofieslaid”allegations, the
defendant has paragraph-16 of the
written statement as u nder:
“The.V%aiieVga_tVio.ns«.:eontained in paragraph 17
A ofv..t.iije plaintlla–re____h_ereby denied and the plaintiff
_ tgopstrict proof thereof. The defendant
1 really what the plaintiff says is
co.rrectg..§it:}_. further surprising as to how the
plaintivffflsv entitled to ciaim compensation. When
thepiallintiff gave an undertaking to the Hon’ble
-~.–eou’nter guarantee was given by the defendant
“‘Stipreme Court in the form of an Affidavit, a
15
which has been accepted by the plaintiff. The
said counter guarantee reads as foliows:
“We therefore agree that in the event of.
your vacating the above apartment
reason of any order made by the
Court/Supreme Court, we shiaiiyreituirrfttlo 4′
You the amount paid by you FQ’it..iJu«rc_h’¢5§
of the above apartmentt’w_ithout.v_raising'”ajny__
objection or requisition be”r~.a|:_’t”‘.t~V-I
also agree to i.ri’d.emniiiFy
indemnified against _a_’ai’i these
proceedings,” cos’t”s;*i’; deimands,
losses be
orwvwhich may be
incurred or: reason of your
vacatiingthei -sai.d”‘a”partment and handing
.oiveri’~vacantvpossession thereof”
it clear that there was no condition
damages or for payment of
interesVt.’e:-yen in the event of the piaintiff
vacating the property and handing over
V’ npos_sesVsion. As a matter of fact, even that
7co’n’tingetacy will arise oniy if the property is to be
‘V »-demolished in accordance with the orders of the
16
Courts. Having regard to the fact that such
contingency has not so far arisen, the question'”—-._
of the defendant making good even the ea.r.r:”e:s’t.f”,:’–_:”~_
money paid does not arise. Even otherwi_se,”th’e1′.j”*
plaintiff is not entitled to eitherthe V
price between the cost of
sought to be purchased by_thev4″plaintiff if
one which is prevailing at”pr’esent i–n.VB.ajrv3gVé:lV,o”re
or for mental agonyuthe V,l.oSV.s”,_v–of*~..working..days,
etc., as alleged if it is
accepted, for the sa,i<.e.:'o–f it is a
case wherein originally
valid has .i'niv:a'l"i*d.m.–o"r;.,: account of the
subses:cgHdent" p|_ai.ntiff can only ask for
refundiof the–arr$ou_ht..V_:a'-no..-not for damages since
the agreemlentw_asr._va«!:.i-d at the inception."
Ad.mttted-iv,' no_.ssue is framed on these pleas. in
»iig'i'tt_ofA_v't.he,:"aforesaid material assertion in the plaint
bjvlvthe defendant, the Court ought to have
_ at ..lea:_stV two issues.
17
1) Whether the defendant has committed
breach of the terms of the agreement and
consequently the piaintiff is entitied to damages_.?___
2) Whether the plaintiff is entitled to damagVes’~.:”‘vv_,
of Rs.6,74,220/– as ciaimed in the piaint i
(14) Having so eiaborateiy raised__the .ipi’e’a’f}re’ga:’=ding
damages in the piaint, unfortunate-iy ztiiei’
course of his evidence probabiyiihiasforgotten
that has been said in respect ofggh-i-s:f’p£e’a..g_in ex”/’ic£en.ce of PW-
1 is as undgerz” – g . .
“Due to’ I incurred a huge
loss. ‘I.__have'” ioss to the tune of
Rs»’.46,7’fi…22u()/’Vjbeicause of the increase in prizes
I fréeifi i%.98i1tfiQ 1938s.}
(‘.1_5u)*fvtghispiece of evidence was not subjected to
ii’AA””c’r0ss-exa:miriatifien by the defendant. Defendant did not
“‘~««l’i5teb”‘into Lwitness box. Under these circumstances, it is
V
18
not possibie to accept the contention of the learned counsel
for the defendant that the parties understood the respjective
cases, knew the issues raised in the case
evidence. On the part of the defendant, ‘no.,.u_ef\(i’dei1ce
adduced. On the part of the plaintiff, excieiptathaltvafo’ife_sa§Vd’
two stray sentences, nothing isv’de.pose”cI~._a’nd e=\€:en,}’.M.hVat3 hasliv
been deposed is not cro_ss–exa_m”i:ned..__barih’pligvtqéifendant.
The material on record this context,
what the trial Court_h’a.s if if
the ma rket
value, llll acceptable evidence.
Seconcll.y’,..the– not able to complete
the tranlsactivonl Ex.P1 because of the
theV”HoVnl’__bl’e Supreme Court and that of
Corporation. Hence, the
Vhlisfenot liable to pay the damages
claijmed plaintiff. I feel it not necessary to
consi~rie’r and discuss the reasons and other
asipectysl for demolition of the suit flat and certain
lotbheir flats. It is suffice to note that, the
-»-diefendant obtained the plan and licence from the
k
19
Corporation and constructed the suit f|at___
including certain other fiats but the
Supreme Court held that, the said
licence are in contravention of the
law. Considering this aspect, ii-n””rn-yrop’ini_,o’n,1
defendant cannot be made l;’i’1abl–e*~to
damages claimed by the’«-.._plaiVn’t,iff.V F:o:5.j.’ithVe.i3
plaintiff, certain ruiings are r’e.l_Vi:ed_VVupVo’n– aboutflthe
frustration of the consiidering
certain admitted facts, n,o’t,C’_n.ec_essary to
consider ail thié d,e’tuai.l,_.’ ‘iirther more,
as per the fiificiii¢on,:i:taong”6r Ex.P1 the
piaintiff the rules and
regul:aVtioln’_s”:o,f as well as other
laws. is not entitle for
damages;’7..i –
‘C Tihe ‘iegarnedvtriiai Judge has rejected the claim for
damiageslfvvi:tjh_’avin’;~observation that first of all to prove loss
the “‘iima.ri<e-t«:'~"vaiue, there is no acceptable evidence.
he has proceeded to find out whether defendant
has committed the breach of contract and he is liable to pay
20
damages. The case of the plaintiff is defendant committed
breach of the contract and therefore he is |iab|e…Vt:e:_:’ifiV_E:1y
damages. The case of the defendant is
frustration of the contract beyond his.
he is not liable to pay damages.
case of frustration. The his*l’
contention after knowing the delfendafint reiied
on certain ruling regarding contract etc.
The learned 3udg§e’o.Aug~ht the aforesaid
rulings, stated point is and then
applying the offlthe case, it was open to
him to have’lr’ec4ord’eVdl:atfinlchnlgwllleither accepting the case of
theypiaivlnstififioryy same. But unfortunately the
tri’a_EEiidgge»hasjst’at_ed that by considering certain admitted
:’°<.____,facts,"herllfevlttthatitvl it is not necessary to consider all the
_l_f_–«.rui§nygs in detait. In fact he has not considered even one
"This is not the way a trial Judge should deal with
. _m?atter concerning damages payable either on account
it//T
21
of breach of contract or on account of frustration of
contract. As set out above, the piaintiff has p|eadV.e_’d_V’hvvi’4s
case ciaiming a sum of Rs.6,74,220/–.
requisite court fee on the said cIaim.:-“uh
not framed, probabiy they couicl
appropriate evidence to substVa’nvst.i:’ate is’
because of that probabiy not “step into
the witness box. V f:ig_.~i:.n’o’.[i\.Effective cross
examination of plaintiff has
adduced. At Judge ought to have
appreciated’ -that was on record and
referred theiiruiirigvs in brief and stated what
|a\(tv«.§fc:.’o:n” is and then he shoufd have
de’n1on’s’trated~ih’Qi}ir that law is applicabie or not applicable to
factsiofvthfiogise and then grant or decline to grant a
..h_i’i’_;.gi.ecr,ee. ‘”‘:’~*ha:t is what is expected of a triai 3ndge. It is
4:-:”u«nfort»un.a’Ate that the triai Judge has not kept in mind the
iegal principies and casuaiiy referred to the matters ..
22
which are not subject matters of the issue
issues had not been framed at them
issues, at the time of judgment
issues, calied upon the parties
decided the case on merits. Th_efl|A’ear~n_Ved ‘has failed
to discharge these iegal imposed on
him. In the this portion
of the the’ necessary issues
arise for ‘have; not been raised. The
Darties in mind the issues
invoived aridx iiearnedv-sJu”dVge has not appiied his mind to
“‘p!eaiding’i:Aarid.’issuvémi/iihich arises for consideration and
theA”-€\i«iiC!eA{iv<':é~JCriT..~:'i'eCOi"d in arriving at a conclusion.
V".;-dwTVrierefoe*'e t__fie-niabove portion of the judgment is not
_:SrustcainaibieVVi'n law. Hence we pass the following :
3.1,/'
23
ORDER
(a) The appeal is allowed.
(in) The Judgment and Decree of the *
dismissing the suit of
claim for damages is conclernedihhhyis
aside. V 4′ h V V 2
(C) The matter is reinitte«d “‘haseig1’to..g.theétriaiVv’Court
for fresh Consideratiodhhheoiviy ‘thve’–V*’question of
claim ciamafges a sum of
Rs. 5;i7«4;.i;20a/1:23′ ‘Cia’i’m’ed byrhe plaintiff.
(cf) The-trial’ to frame appropriate
issuesthis regard taking note of what we
. statedfvabfove with the assistance of the
and thereafter permit both the
“”*–parjties:”‘ to adduce evidence in respect of the
* .-._issues to be raised and thereafter after hearing
the parties and referring to the judgments cited
M/1
24
by them pass judgment on merits in accordance
with la W.
(e) The parties are directed to file ~
enable the Court to frame: ~a,o_p&ro,-‘:’ria”te7It issues
without confusion or further}’os:s._lof time; –. _ ‘/ ”
(F) In all other aspects, vfl°iéi..V’i7fl’a/ .co.L’,ftV..iJjL:id§eVn1e’nt
stands undi’sturbed.,_
(g) No costs
(h) High Courttet-§’*’ice;1.;’sgdirected?.to._refund the court
fee oaiid gV:>”n_”this,nae-nfiorandun;’ of appeal under
sectibriasg “‘t.h’e~,:Karna’ta’lta Court Fees and
Suits “‘«/;_al’ua’t 9.58. L
…..
Sdl-in
Eadge