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2021 Supreme(Kar) 223
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S.Sujatha, Sachin Shankar Magadum, JJ.
Sri Pawankumar Dalmiya S/o D.L.Dalmia and Ors. - Appellants
Versus
Sri Biligowda S/o Late Siddegowda and Ors. – Respondents
R.F.A.No.1967 of 2011
Decided On : 11-01-2021
Advocate Appeared:
For the Petitioner: Sri P.M.Siddamallappa, Adv. For M/S. Mylaraiaha Associates
For the Respondent: Sri K.V.Narasimhan, Adv.
Headnote:
Civil Procedure Code,1908 – Order 41 Rule 27 r/w section 151 - Recovery of sum – Claim petition - Plaintiffs filed suit against defendants for recovery of sum together with court costs and current interest by way of damages at rate of 2% per month from date of suit till actual date of realization and also prayed for creation of 1st charge on suit item for recovery of suit claim - Defendants are family members and they had represented to plaintiffs that they are the absolute owners and in possession of suit properties - Plaintiffs being neighboring land holders have agreed to purchase suit schedule properties - Defendants had assured plaintiffs that title deeds and other relevant documents would be furnished for verification before drafting sale deeds for verification - Believing said assurance and on basis of RTC entries, plaintiffs came forward to purchase suit properties for valuable consideration of sum pursuant to which registered agreement of sale was executed by defendants after receiving advance amount out of sale consideration by agreeing to execute registered sale deed within 110 days from the date of sale agreement - Whether plaintiffs prove that defendants are not owners of all suit schedule properties, accordingly having no right, title or interest over same – Held, even in appeal proceedings, though negotiations were held between parties for settlement, same has not been fructified due to some minute difference regarding rate of interest - Considering totality of circumstances of case, court deem it appropriate to direct defendants to refund to the plaintiffs with interest @ 3% p.a. from date of filing of suit till its realization keeping in mind the status of plaintiffs and defendants as developers and farmers respectively - It is made clear that decretal amount shall be paid by defendants to plaintiffs within a period of ninety days from date of receipt of certified copy of judgment and order failing which a charge shall be created on item of the suit schedule properties for recovery of decretal amount - Appeal is allowed.
JUDGMENT :
S. SUJATHA, J.
This appeal is directed against the judgment and decree dated 27.08.2011 passed in O.S.No.6/2009 on the file of Civil Judge (Sr.Dn.), Maddur (‘Trial Court’ for short).
2. For the sake of convenience, the parties are referred to as per their status before the Trial Court.
3. The plaintiffs filed suit against the defendants for recovery of Rs.17,40,700/-together with court costs and current interest by way of damages at the rate of 2% per month from the date of suit till the actual date of realisation and also prayed for creation of 1st charge on suit item Nos.4 and 5 for recovery of suit claim.
4. Description of the suit properties are as under:
SCHEDULE
| (1) | Sy.No.5/1A measuring 0.22 gts. |
| (2) | Sy.No.5/1B measuring 0.36 gts. |
| (3) | Sy.No.5/2 measuring 0.29 gts. |
| (4) | Sy.No.5/3 measuring 0.29 gts. |
| (5) | Sy.No.5/4 measuring 0.29 gts. |
All the properties having common boundaries bounded on the East by Property of Plaintiffs, West by Property of Plaintiffs, North by: Property of Pavanikumar Dahnia and property of Ramalingaiah, South by Property of plaintiffs.
5. The plaint averments in brief are that:
The defendants are family members and they had represented to the plaintiffs that they are the absolute owners and in possession of suit properties. The plaintiffs being the neighbouring land holders have agreed to purchase the suit schedule properties. The defendants had assured the plaintiffs that the title deeds and other relevant documents would be furnished for verification before drafting the sale deeds for verification. Believing the said assurance and on the basis of the RTC entries, plaintiffs came forward to purchase the suit properties for valuable consideration of Rs.85,55,000/-pursuant to which registered agreement of sale dated 31.7.2008 was executed by the defendants after receiving the advance amount of Rs.15,00,000/-out of sale consideration by agreeing to execute the registered sale deed within 110 days from the date of the sale agreement. The defendants had further agreed to receive the balance sale consideration before the Sub-Registrar at the time of registration of sale deed.
6. The plaintiffs contended that after execution of the sale agreement, plaintiffs insisted for survey sketch and other documents from the defendants but the same was dodged. The plaintiffs themselves obtained the certified copy of the sale deeds and came to know that the 1st defendant Biligowda had the sale deed in respect of Sy.No.5/4 and 2nd defendant Mariyappa had the sale deed with respect to Sy.No.5/3 and for rest of the properties, no sale deed was found. The plaintiffs having noticed, the defendants had no title deeds or documents except the RTC, got confirmed that the defendants have no saleable interest relating to the suit schedule properties. Hence, the plaintiffs rescinded the contract and got issued notice to the defendants on 12.2.2009 intimating the same and demanding to repay the earnest money deposit with interest.
7. The defendants had issued reply notice asserting their saleable interest and stated that they are ready to execute the sale deed.
8. The plaintiffs averred that the defendants are pretending as absolute owners of the suit schedule properties without the valuable title deeds. Even at the time of filing of the suit, they had no saleable interest. Hence, they were constrained to file the suit seeking for the reliefs sought in the plaint.
9. On issuance of summons, defendant Nos.1 and 4 appeared through their counsel and filed their common written statement admitting the execution of the agreement of sale and receipt of earnest money deposit of Rs.15,00,000/-. The defendants asserted that they are the absolute owners and in possession of the suit schedule properties. All the concerned documents are standing in their names. The plaintiffs
