L Krishnoji Rao Rep by GPA holder C. Annaiah vs Agarbathi Workers House Building Co-operative Society Limited, Bangalore, Rep. by its Director, Sri V C Redappa Chetty

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Kar) 570

High Court of Karnataka
N. KUMAR, A.N. VENUGOPALA GOWDA
L Krishnoji Rao Rep by GPA holder C. Annaiah
Versus
Agarbathi Workers House Building Co-operative Society Limited, Bangalore, Rep. by its Director, Sri V C Redappa Chetty & Others
REGULAR FIRST APEAL No. 529 OF 2000 C/W REGULAR FIRST APPEAL No. 530 of 2000
Decided on : 23-09-2011

Advocates appeared:
For the Petitioner:C.V. Nagesh & K Suman, Advocates. For the Respondent:R1 - Udaya Holla Senior Counsel for G Krishna Murthy, Advocate, R-2(a), R7, R9 & R10 - M/s Lawyers Inc., Advocates, M/s Hande Associates, Advocates.

Headnote:LAND ACQUISITION ACT, 1894 - Section 16(c): [N. Kumar & A.N. Venugopala Gowda, JJ] Ready and willing to perform - Purchase of suit property by a co-operative society - Large number of members of society invested their hard earned savings in said transaction - Major part of sale consideration already paid - Balance part of sale consideration also could be paid by members - Finding recorded by trial Court that material on record clearly establish readiness and willingness on part of plaintiff to perform their part of contract - Held, The finding is based on legal evidence and do not suffer from any legal infirmity so as to call for any interference.
       LIMITATION ACT, 1963 - Article 54: [N. Kumar & A.N. Venugopala Gowda, JJ] Suit for specific performance of contract - Limitation - Held, The requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein, ’date fixed’ means thus either the date fixed expressly or a date that can be fixed with reference to a future event which is certain to happen. When date is fixed it means that there is a definite date fixed for doing a particular act.
        Where under the agreement, date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely the publication of the final notification on which date the balance consideration had to be paid and thereafter the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce and subsequently that date was substituted by the date of the passing of the order of conversion of land use as the date for enforcing the agreement, the period of limitation would start running from those dates. Therefore, the suit filed by the plaintiff within three years from those dates was within time and not barred by time.
       LIMITATION ACT, 1963 - Article 54: [N. Kumar & A.N. Venugopala Gowda, JJ] Suit for specific performance of contract - Agreement of sale entered into by owner with plaintiff society - Suit by plaintiff for injunction against owner from alienating property to third person in collusion with President of society himself - Plaintiff subsequently found that its apprehension was misconceived - Suit was got dismissed as withdrawn - Held, As the plaintiff found their apprehension was misconceived, immediately thereafter, they filed a memo and got the suit dismissed as withdrawn. Therefore, the said contention that the averments in the plaint amounts to the refusal on the part of the first defendant to perform the contract is untenable. Limitation will not start from date of filing of that suit.
       SPECIFIC RELIEF ACT, 1963 - Section 19(b): [N. Kumar & A.N. Venugopala Gowda, JJ] ’Bona fide purchaser for value without notice’ - Sale deed of suit property showing that it was not bona fide transaction and amount mentioned in sale deed on date of sale deed was only nominal amount and not valuable consideration -It was sham transaction and Defendant purchaser was only name lender - He did not enter witness box - Plaintiff was in possession of property and not so called owner of suit property - Held, Defendant purchaser was not bona fide purchaser for value without notice.

Judgment :

1. These two regular first appeals are filed by the tenth defendant in O.S. No.3341/1992 challenging the common judgment but separate decrees passed in O.S.No.3341/1992 and O.S.No.5540/1990, both of which are decreed. O.S. No. 5540/1990 is a suit filed for a bare injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property claiming right to the property under an agreement of sale dated 24.11.1985. The suit O.S. No. 3341/1992 is a suit filed for specific performance of the said agreement dated 24.11.1985. As per order on I.A. No. VII dated 18.2.1998, O.S. No. 5540/1990 was clubbed with O.S. No. 3341/1992. By the impugned judgment, the trial Court has disposed of both the suits, decreeing the suits as prayed for.

2. The facts which gave raise to both these suits is one and the same and even the defence taken is also identical. Therefore, the facts set out in O.S. No. 3341/1992 and the written statement filed therein are clearly set out. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

3. The subject matter of the suit are agricultural lands bearing S.No.38/1 measuring 20 1/2 guntas and S.No.37 measuring 3 acres 36 guntas, both situate at Chikkabettahalli Village, Yelahanka Hobli, Bangalore North Taluk, within the boundaries mentioned in the schedule to the plaint and they are hereinafter referred to as the ‘schedule property’.

4. The plaintiff is a society registered under the Karnataka Co-operative Societies Act, 1959. The society is formed for the purpose of forming layouts and allotting sites to its members and also for the welfare of its members. One Shri Syed Mohideen was the absolute owner of the schedule property. He entered into an agreement of sale dated 24.11.1985 agreeing to sell the schedule property for a consideration of Rs.1,10,000/-per acre. The said Syed Mohideen received a sum of Rs.2,97,500/- by cheque dated 24.11.1985 towards sale consideration and the cheque was duly encashed. Subsequently, the plaintiff has made payments of Rs.10,000/- on 4.6.1986, Rs.1,000/-on 18.6.1986, Rs.20,000/- on 22.9.1986, Rs.2,750/- on 17.12.1986 and Rs.30,000/- on 17.12.1986 by way of cheques all of which have been duly encashed. Thus, the plaintiff has paid a sum of Rs.3,61,250/- towards sale consideration, which amount has been duly acknowledged by Shri Syed Mohideen.

5. Syed Mohideen died on 9.1.1988 intestate. Defendants-1 to 6, 8 and 9 are the children of Shri Syed Mohideen and defendant-7 is the wife of Shri Syed Mohideen. They have inherited the properties of late Syed Mohideen and they are bound by the contract entered by late Syed Mohideen in respect of the schedule property with the plaintiff.

6. The case of the plaintiff is that the schedule properties are agricultural lands. It was specifically agreed between the parties that the sale deed has to be executed by the owner in favour of the society within six months from the date of the conversion notice issued by the Special Deputy Commissioner, Bangalore. It was specifically agreed that the owner has to co-operate with the purchaser in obtaining the conversion certificate from the competent authority for non-agricultural purpose. Shri Syed Mohideen, having received a sum of Rs.3,61,250/- out of Rs.4,85,375/-, which is the total consideration payable for the sale of the schedule properties. Handed over the possession of the schedule properties to the plaintiff society. Only a sum of Rs.1,24,125/- has to be paid towards the balance sale consideration. Shri Syed Mohideen also deposited the original title deeds, which were in his custody, with the plaintiff society, as security by way of equitable mortgage for the amount paid. Shri Syed Mohideen could not execute the sale deed in favour of the society in view of the fact that the property was not converted for non-agricultural purposes. Shri Syed Mohideen, with the assistance of

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2011 Supreme(Kar) 570

Cases Referred (6)