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2021 Supreme(Kar) 707
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Aravind Kumar, Shivashankar Amarannavar, JJ.
J. Somashekar S/o C. Jayaraj – Appellant
Versus
Lt. Col. Appuramanand Sharma (Retd.) S/O Late V.K. Swamy And Ors. – Respondents
Regular First Appeal No. 307 of 2019
Decided On : 22-03-2021
Advocate Appeared:
For the Appellant :Sri. D.R. Ravishankar, Advocate
For the Respondent:Sri. Giridhar S.V, Advocate
Headnote:
Specific Relief Act - Sections 30, 20(2) , 22 , 22(2) and 24 - General Clauses Act, 1897 - Section 6 - Indian Contract Act - Sections 13, 17(1), 17 and 18 - Suit schedule property and upon mutual negotiations - Contract - Seeking for further advance - Defendant No. 1 representing himself to be owner of suit schedule property offered to sell the suit schedule property - One Smt. Had introduced the plaintiff to defendant No. 1 in relation to purchase of suit schedule property and upon mutual negotiations, property was agreed to be purchased for a total consideration - Term of understanding was reduced into writing as per agreement of sale and same was registered before the Sub-Registrar, agreement, plaintiff had paid a sum advance under cheques referred to in agreement and the balance sale consideration amount had to be paid at the time of registration of sale deed - Clause-II of agreement contemplated that transaction had to be completed within a period of three months, however, subject to condition that the plaintiff would secure and produce the documents referred to sub-clauses (a) to (s) documents had not been secured - Seeking for further advance on ground that same was required to meet his exigencies- Defendant No. 1 was specifically required to obtain no objection letter from his daughter and even a draft of the letter was given, so that transaction could be completed, as defendant No. 1 was expressing that he was in a hurry to leave country to join his daughter – Held, Guideline value of properties would be fixed by Government for the purpose of collecting the stamp duty - Guideline value does not depict the actual market value of property - Guideline value fixed in the document sought to be produced is in respect of a property situated in HAL II Stage - On looking to the actual transactions that have taken place which are certified copies of sale deeds depicting the actual market value of the property, it is evident that actual market value of property at the relevant point of time was nearly four times the guideline value fixed said document sought to be produced by the appellant/plaintiff will not assist plaintiff to prove actual market value of the suit schedule property - Appellant/plaintiff has not made out any ground for production of additional evidence by way of document as required under Order 41 Rule 27 CPC and even otherwise, non-production of said document would not prejudice right of appellant-plaintiff - Appellant/plaintiff has not even sought for alternative relief of refund of earnest money even in this appeal - If appellant/plaintiff had sought for refund of earnest money trial Court ought to have considered whether same is to be refunded or not by taking into consideration damage and hardship caused to defendants - Trial Court has not committed any error in not granting refund of earnest money - Appeal is dismissed.
JUDGMENT :
Shivashankar Amarannavar, J.
This appeal has been filed by the unsuccessful plaintiff challenging the judgment and decree dated 29.11.2018 passed in O.S. No. 5395/2011 by XII Additional City Civil and Sessions Judge, Bengaluru whereunder the suit of the plaintiff filed for the relief of specific performance came to be dismissed.
2. The parties will be referred as per their ranking before the trial Court.
3. Brief facts of plaintiff's case is as under :
Defendant No. 1 representing himself to be owner of the suit schedule property offered to sell the suit schedule property. One Smt. Pushpanjali Reddy had introduced the plaintiff to defendant No. 1 in relation to purchase of the suit schedule property and upon mutual negotiations, the property was agreed to be purchased for a total consideration of Rs.1,80,00,000/-. The term of understanding was reduced into writing as per the agreement of sale dated 02.09.2008 and same was registered before the Sub-Registrar, Indiranagar, Bengaluru. Under the agreement, plaintiff had paid a sum of Rs.20,00,000/-as advance under the cheques referred to in the agreement and the balance sale consideration amount had to be paid at the time of registration of the sale deed. Clause-II of the agreement contemplated that the transaction had to be completed within a period of three months, however, subject to the condition that the plaintiff would secure and produce the documents referred to sub-clauses (a) to (s). Though the documents had not been secured on 09.09.2008, defendant No. 1 had again approached the plaintiff seeking for further advance on the ground that the same was required to meet his exigencies. At the request of defendant No. 1, further sum of Rs.7,50,000/-was paid by means of cheque bearing No. 172853 drawn on Bank of India, V.V. Puram Branch, Bengaluru and a separate receipt was also executed by defendant No. 1 in this regard. Defendant No. 1 was specifically required to obtain no objection letter from his daughter and even a draft of the letter was given, so that the transaction could be completed, as defendant No. 1 was expressing that he was in a hurry to leave the country to join his daughter. It was also represented by defendant No. 1 that he intended to execute General Power of Attorney in the name of his friend Sri. Ramesh Rao after obtaining no objection from his daughter and sale transaction could be completed through the Power of Attorney holder by paying the balance sale consideration. Defendant No. 1 who was a greedy person had not secured no objection letter and had not executed the registered sale deed as per the contract, despite plaintiff being ready to perform his part of contract. It was further contended that defendant No. 1 instead of complying the agreement terms, made allegation against the plaintiff that the agreement in question is obtained under fraud, undue influence and mis-representation. Since defendant No. 1 did not execute the sale deed, he got issued legal notice and as defendant No. 1 did not comply with legal notice he filed a suit for specific performance of the agreement pleading that he was always ready and willing to perform his part of contract and it was defendant No. 1 who was not ready to perform his part of contract.
4. Defendant No. 1 in his written statement has pleaded as under :
Plaintiff with the assistance of people upon whom defendant No. 1 was depending, had secured the agreement by fraud, undue influence, misrepresentation and taking undue advantage of trust and confidence reposed by defendant No. 1 on plaintiff. The plaintiff had exercised undue influence by playing fraud and had secured suit agreement and the consent given by him under the agreement was not a free consent and he further contends that he had already transferred the property by gifting the same in favour of his daughter and hence, the suit was not maintainable. His specific contention was that the suit schedule property was worth Rs.7,20,00,000/-. By playing fra
