IN THE HIGH COURT OF KARNATAKA AT BANGATQORE
DATED THIS THE 2N9 DAY OF SEPTEMBER .%2k0.1ed' "
PRESENT
THE HONBLE MR. JUSTICE K.:L'.A1'_s§j=2NJU'1$TA1'};1#" '
Am)
THE HONBLE MR.J[fS§fICE
BETWEEN '
Sri 1:
Since deceasedbyby V
1.
bbsflfij31$-;sh§5Tg§n1 "
'S/0 'late 3;'NL.'Naf1j;1'1*1dappa
Aged about 55 yee"1's:"
..s;~1 1§:bI:.'Yati'1ish "
» ' /0' 1ate"B.N_,_§\{anjundappa
Agedeabout 51 years,
-Represented by GPA Holder
- Sundar.
5'Tnf;A..:'~''B.N.Renuka
' .. 133/ 0 late B.N.Nanjundappa
Aged about 39 years,
x V? Represented by GPA Holder
B.N.Shyam Sundar.
fr'
IN)
All are residing at
No.10, C.i.L. Lay--out
Sahakar Nagar
Bangalore - 560 092.
4. Sri B.N.Ravi Kumar
S/0 late B.N.Nanjundappa:' .
Aged about 53 years
R/a No. 303, 14*" Main,
R.M.V. Extension, it '
Barlgalore -- 560 080. V. lAPi5fiI§LANTs V'
(By Sri K.N.Dayalu, Ar;iV".l,J'
SriN.ShivaKuri1ar " .
S/0
Aged about-V33 y'e_a_rs" _: -3 V .
R/a No. 24/ '
Subbarama e. i e
Basavangudi, ' "
Bangalor'e.j"2-VO. l * RESPONDENT
(By Sri A;s_ovyerakanath, Adv. ,)
é "
First Appeal filed 11/8. 96 of CPC
lagainst 'thlfe--fiidgment and decree dated 19.11.03 passed
in .3805/98 on the file of the XI Addl. City Civil
Judge, Bangalore (CCH--8}, dismissing the suit.
it Regular First Appeal coming on for hearing,
'At:his..day, KLMANJUNATH, J., pronounced the following:
(C1,.
JUDGMENT
The appellants are challenging the l6g3llit};f”g:’.e{i1d
correctness of the judgment and decree’:.:”pasVs’edl
O.S.No.3805/1998 on the file (j.f”th’e« x1″.eAq.Vdii7’llv:::{yshrew}; A
Judge, Bangalore, dated 19, 1 if
2. The appellants/ have suit’
for the relief of Spe.e_ific_rl’perforrn’anee ldireeting the
defendant to transfer, property in
his favour by ‘eéjgeleuting {thee abso-1ute__:sale deed or in the
alternativetojdireet to refund ? 12 lakhs
together the rate of 24% per annum
from thelrlate of lagr’ee:_1Enent till the date of realisation.
g_ fi1ed”13y__§t_he appellants came to be dismissed.
the legality and correctness of the
‘:.tlfl:éV’pI’€S€I1t suit is filed.
‘ -.«’We have heard the learned counsel for the
,, . ,. 2. ‘ pg gpartlpes; ;
4. It is the case of the plaintiff that initially the
suit was filed by Sri B.N.Nanjundappa
death. his 1,123., are brought on record.
5. According to the op’1′;u-:1: g_
defendant being the absolute the’~
schedule property bearing lMl:o;’24/l ‘{Old. and if
being a Director of Messgrs. Private Limited,
in order to improve the to sell the
plaint sched’ulc:..property”.”for” in favour of
plaintiff. llgjagreernent of sale came into
existeln.ce*on and the same was registered in
the office”li:helS1ib–Registra.r. Bangalore. Out of ? 15
1al{l’1s..___was paid by the defendant. It was
eedv.tha’tt.:tl1–e transaction has to be completed on or
before Though the plaintiff was ready and
willingfltol pay the balance sale consideration the
defe’n.dant never cowoperated in completing the sale
deed. On 31.03.1998, the defendant never appeared
(V.
before the Sub–Registrar to execute the sale deed in
favour of plaintiff. Pursuant to the legal notice’–issi:j’e’d
on 27.02.1998 calling upon the defendant
the sale deed in his favour as “pert the V
agreement of sale dated
who received the notice sentgan “u’ntenable’=,Vreply on’
18.04.1998, wherein “l1.e_fi denied. hfiad”‘exe:cuted an
agreement of sale in Therefore,
the suit w_as’:««l.fi’led ..Vr;_erforrr1ance of the
contract direct the defendant to
repaygrnenti’ with 24% interest per
annurn. ” V I 9 it
. _6. “Tlie.drefe’11dant contested the suit. According
” gtO’_._fiirnt,: there ilsfnotvagreernent of sale. The defendant
:had* one Sri M.G.Hegde for a financial
accornrnodation of 3 12 lakhs. The said M.G.Hegde in-
gtugrnu securing the documents of the defendant got
–..gVthe..tA’tagreernent registered on 02.05.1997 and that the
<9
defendant did not receive any money from him except a
sum of €75,000/– which was paid by
means of a cheque which in turn was encashed.
Therefore, contending that ftfie'-« . '–were
executed in order to secure loan from Mv._3G;'}§egde;'–~
contended that the suit fiiedrby the note
maintajnable.
7.
‘£fsasg§i’ox1:=._the the foliovxdng
issues we1fe:fra1ned:» l
‘A _ proves that the
deienda:at’t’ag”reed’to sell the suit property for
4’ a ‘ .conside1faiti’on
of ?.15,00,000/– and
_Ve::ecute”d_ theagreement (it. 2–5– 1997’?
Whleth._e_rnthe plaintiff proves that he has paid
_ advance sale consideration of ?.12,00,000/–
” to –the defendant?
‘j_ Whether the plaintiff proves that he has
‘ » ‘been ready and wilting to perform his part of
contract?
Whether the plaintiff proves that he is
entitled to the Specific performance of the
contract?
fir’
5. Whether the plaintiff proves that he is
entitled for possession of the suit provpe,rt;,i’.?
6. What decree or order’?
8. In order to prove rerspeictive ..co-niteiitionasd
on behalf of the plaintiff done Voff
Representatives by name was
examined as PW.1. to 7. On
behalf of the d.evfenda1it.,. has filed his
affidavit EXs.D.1 to
9. Viitriaig Coiurt after appreciating evidence
onv.»4rieeo1″d heVid’—Vlsvsiie Nos. 1 to 5 in the negative and
‘disn1issVed’«..the__ suit holding that it is not a sale
tranvsactioii-.
it 10. Being aggrieved by the judgment and decree
dated 19.11.2003 the present appeal is fiied.
W
11. Though several grounds are urged by the
appellants /plaintiffs at the time of the argumer:1t;fl’iVt”‘is
the specific contention of the appellant that
court has erred in dismissing the ‘s!iit”_.of
even though the defendanthad
of the agreement. Accordinlg-to hi1n,_’ the if
suit documents has been thelexecution of
the said documents Vlfaz:ln_3itted by the
defendant, an error in
ignoring “defendant during the
trial. :7’31j1:’e; the trial court has
conimitted’-an the issues based on the
pleadings of theep’artiesTand in the alternative, even if it
. l”-Wpas ca?loai1..Atransaction, the trial Court ought to have
in favour of the appellant for refund of
arnourntff of €12 Iakhs which was paid to the
defendant. It is further case that since there is clear
” . ‘ ‘-admission of the defendant in his cross examination,
-»-the trial Court has failed to appreciate the said
«K»
.
evidence. Hence, he requests the Court to set aside the
judgment and decree of trial Court.
12. Per contra, the learned w.
defendant supported the order flthue
dismissing the suit. Since-the ijiaiiitiff e.iv1;?;i;s;:v:f;_Vi,iVie}:1
prove the real transaction and that
he has also failed to of Consideration
to him by the the trial Court
is justified C it
‘Having-C:.’l:e_ai:d”‘the counsel for the parties,
the jgoirits arises for our consideration in this
the trial Court has framed issues
.l:i’foaVsed on the pleadings of the parties?
.. ii}*s Whether the trial Court is justified in
dismissing the suit’?
6/
30
14. From looking into the Written Statement filed
by the defendant, the defendant has dispLttegd«._.’_lthe
execution of the registered agreement of.
contends that the documents of the ,p4rope.rty” »duestio’n if if
were handed over to M.G.Hegde:”to
advance a loan of 3. to ‘defendant.”‘l
According to him, the ? 30
lakhs. On the that amount of
?° 12 lakhs .vwou1_d ‘time and the
defendant ?. 75,000/- as
interim tttt came to be
dishonxo–uured.V him, the defendant signed
the documeiiotivpreparedwv the plaintiff and handed over
“”~…Athei~–.Aoriginalg doguments of title to the plaintiff for
“lofan_}~to be arranged. According to him, there
isno p_ri’vi_t§r of contract and that the documents given
M.G.Hegde has been misused by the plaintiff.
r’1g’h–e retrial Court considering the above pleadings has
…rightly framed issue Nos. 1 to 3 but the trial Court has
5’/if
failed to frame an issue based on the pleadings of the
defendant that whether the defendant proved
documents of title were handed to M.G.Hegde
to secure a loan of Q’. 12 lakhs_on__the_Vstrer1gth= ofgtlaell ”
documents handed over to M.G.;’lvleg’de’lan:d. that
documents were misused’lTbjra._lVI.G’;’Hegde’.’v.V_AA”5l:his. ‘issues’
would arise based on. the ple-arVli’ngs~»..of the p.arties and in
View of the production oi”tlrefloriginal:docurnents of the
property in quest–ion
the trial Court having
considerued of defendants EX.D.1 and
Ex.L’.,43 andt’act- that the DW.1 has categorically in
his a.ci*oss”-egcamiriation admits about his putting the
E..x.p.4(a) and that he had been to the Sub-
Registrarfjffice and put his thumb impression before
the é:’ub–Registrar and that he also admits that all
“;_d’oeI:,1rnents pertaining to the property in question are
” Sri B.N.Nanjundappa, the original plaintiff, the
R2/,
trial Court should have considered the plea the
plaintiff that he has proved the agreement in
clear admission of DW.1 in his cross exaniiriations; “But
unfortunately, this point has not been
triai court.
16. On appreciatioin’Qf the, the”?
execution of documents byp..the..”defe-ndantf and-since the
burden of proof lies to prove that
DW.1 exeeutedLE;»r.P.é}’ handed over to
the originai by the defendant in his d
cross¥exarninationp,’t thisp.”Court is of the view, that the
trial Courtdhas’.fai1ed__’to frame proper issues on the
ba_.sis the afo’1″e.s_a_id pleadings. Therefore, we are of the
‘ «points that we have formulated above,
requires ‘7’f’j_to’ be answered in favour of the
appellants/plaintiffs and in View of the same, the
matters required to be reconsidered by the trial Court
$1/_
afresh by framing appropriate issues and afford an
opportunity to the parties.
17. In the result, we aliow thisH__appeai=..
judgment and decree passed
19.11.2003 by the XI Addli _City4C1p3′._:\’fiwl .Juc1ge,p’sang;i1oeeeer.
is set aside to frame proper a’d;ditionai’ issues and to give
opportunity for both p’arties:« in evidence and
dispose of the suit not._1._ater from today.
In the appellants are
‘Court under Section 64 of the
Karnataka com .;§nc*.V~”Suits Valuation Act.
‘A ‘ ….. .. V
Judge
Sd,/-w
Judge
..i’SJ/-