2020 Supreme(Kar) 129

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Sreenivas Harish Kumar, J.
Sri Devaraj – Appellant
Versus
Smt. Dayarathini Major, W/o Late K.Kadirappa and ors. – Respondents
Regular First Appeal No.380 of 2005
Decided On : 16-03-2020

Headnote:

Indian Evidence Act - Section 58 – Civil Procedure Code - Order 41 - Rule 22 - Value of immovable property - Issued a legal notice - Order of temporary injunction - Whether plaintiff proves that defendants executed an agreement of sale in his favor - Whether plaintiff was ready and willing to perform his part of contract - Whether it would be inequitable to enforce agreement on account of contentions raised in para-4(B) of written statement especially that market value of property has gone up considerably - Whether agreement gives any unfair advantage to plaintiff over defendant - Whether DW6 and his daughter gave any letters to him he has also stated that he knew and then identified his signature at Ex.D.10(a) besides saying that he got issued reply as per Ex.D.11 and writing letters as per Ex.D.4 and D.6 - It is case of plaintiff that he entered into an agreement with defendants for purchasing a property measuring East to West feet and North to South feet in village Corporation Division - Sale consideration fixed - Defendants received from plaintiff towards advance sale consideration or earnest money and agreed to execute sale deed by receiving balance after obtaining requisite permission from competent authorities - Instead of taking action for obtaining permission defendants went on postponing performance of their part of contract - Plaintiff became suspicious about bonfires of defendants and got issued a legal notice demanding of them specific performance of agreement – Held, Plaintiff states that he entered into an agreement with defendants for purchasing suit property and defendants deny to have executed it - They also deny their signatures on said agreement marked Ex.P.1 - In examination-in-chief he asserts to have entered into an agreement and that attesters to agreement were PW2 and PW3 - Attesters have stated that agreement was executed by defendants in their presence and that they have identified their signatures on Ex.P.1 - All these witnesses have been cross examined at length - To rebut evidence put forth by plaintiff regarding execution of agreement main witnesses from defendants’ side are DW1, DW2, DW3, DW6 and DW9 and they have produced copies of letters which according to them would prove that actual agreement was with Salvation Army and that plaintiff was only an agent of Salvation Army - Before reassessing evidence of these witnesses brief reference to findings recorded by trial court is necessary - It is held by trial court that though PW1, PW2 and PW3 have stated in their evidence that defendants executed agreement as per ExP1 their evidence does not establish execution of agreement for PW1 failed to identify defendants 2 and 3 in open court he wrongly identified DW5 and DW6 to be defendants 2 and 3 - Therefore it is doubtful that defendants would have executed agreement in favor of plaintiff and in this view specific contention of defendants denying execution of agreement becomes probable - Trial court has also found that evidence regarding payment of earnest money is not consistent - Plaintiff denied to have approached a real estate agent by name although he mentioned his name in affidavit filed by him with an application for temporary injunction trial court has taken note of this conduct of plaintiff to come to conclusion that he may not be a truthful witness - It is to be said that although according to explanation (i) to Section 16(c) of Specific Relief Act actual deposit of money before court is not required it does not mean that plaintiff should not prove his financial capacity - His evidence shows that he was a second hand car dealer and running an automobile workshop - He has stated that he was negotiating sale of cars in a year and getting brokerage per car - He has not stated his income from repair of automobiles - He might have stated that he used to have cash of with him but this assertion appears to be self serving as he has stated that he had in his Bank account best way of proving it was by production of pass book and non production of it improbabalizes his case - ExD13 and D14 are two documents produced by defendants in proof of their applying for permission under Section 26 of Urban Land Act - They are affidavits filed by third defendant and captain representing Salvation Army - Ex.D15 and Ex.D16 are a notice and an endorsement issued by Assistant Commissioner of Urban Land Ceiling Authority - Defendants examined two witnesses Dw7 and Dw8 in connection with these aspects - Evidence given by DW8 who worked as Assistant Commissioner of Urban Land Ceiling Authority is relevant - He speaks about Ex.D13 to D15 commented on his evidence by referring to one answer in cross examination that he was seeing documents, Ex.D13 and Ex.D14 for first time in court - According to him this answer would indicate that he had not seen them any time earlier - But such a meaning cannot be attributed to it all that can be inferred is that he might not have seen them any time earlier in court than day he came to court to give evidence - Reference to Ex.D13 to D16 and evidence of DW8 is made only to mention that no such earnestness could be noticed from evidence of PW1 to say that he too was ready and willing to perform his part of contract - Therefore mere issuance of notice as per Ex.P2 is not enough - Judgment of High Court in case is altogether in a different context principal question there was whether any sale of a surplus land in contravention of Section 5(3) of Urban Land Act was null and void - There were two suits and one ended in a compromise - In suit made by appellant decree of specific performance was denied though other reliefs were granted and hence he came up in appeal - In that context High Court held that a conditional decree for specific performance could be granted - Therefore this decision is not applicable here - Appeal stands dismissed