C. Mangilal vs K.B. Ramadass and Others

H. Billappa, J—This appeal by the appellant-plaintiff is directed against the judgment and decree dated 24.6.2010 passed by the XXVIII Additional City Civil Judge, Bengaluru, in O.S. No. 25628/2008.

By the impugned judgment and decree, the Trial Court has dismissed the suit of the plaintiff for specific performance of the sale agreement dated 19.2.2007.

Aggrieved by that, the appellant -plaintiff has filed this appeal.

Briefly stated the facts are;

The appellant-plaintiff filed suit in O.S. No. 25628/2008 for specific performance of the sale agreement dated 19.2.2007. The case of the appellant-plaintiff was that the respondents-defendants are the owners of the residential house bearing No. 93, 3rd Cross, 7th Main, Near Sumangali Kalyana Mantapa, St. Thomas Post, Lingarajapuram, Bengaluru-84, measuring East to West 30" and North to South 20", in all, measuring about 600 sq. feet. It is stated, the defendants are the joint owners of the suit schedule property having purchased the same through a registered sale deed dated 13.12.2004. The defendants due to financial crisis and for family necessities borrowed a loan of Rs. 4,25,000/- from the plaintiff. The said loan was paid by way of cash to the defendants. The defendants acknowledged the receipt of the said amount and deposited the title deed in respect of the suit schedule property. The defendants agreed to repay the amount of Rs. 4,25,000/- within a period of 19 months with interest at 4% per month and executed a General Power of Attorney and deposited title deed with the plaintiff on 18.01.2008.

It is stated, thereafter, the defendants approached the plaintiff and offered to sell the suit schedule property to the third party to meet their financial crisis and showed their inability to repay the loan amount. They offered the plaintiff to purchase the suit schedule property by adjusting the amount borrowed by them. The plaintiff agreed to purchase the suit schedule property for a sum of Rs. 10,50,000/- and paid a sum of Rs. 4,75,000/- in addition to the amount already paid. The plaintiff paid in all a sum of Rs. 9,00,000/- by cash to the defendants. On 19.2.2007, the defendants entered into a sale agreement with the plaintiff. The balance payable was Rs. 1,50,000/- towards the sale consideration amount. The plaintiff was ready to pay the balance sale consideration amount of Rs. 1,50,000/-. It is stated, the plaintiff approached the defendants to execute a registered sale deed by accepting the remaining sale consideration amount and handover vacant possession of the suit schedule property. The defendants neither handed over the possession nor executed the sale deed. The defendants are not showing any interest to execute the sale deed in favour of the plaintiff. The plaintiff is ready and wiling to take the registered sale deed. The defendants have not come forward to execute the sale deed. Therefore, the plaintiff issued legal notice dated 19.3.2008 to the defendants both under RPAD and also under certificate of posting. The notice sent under certificate of posting was duly served. However, the notice sent by RPAD was returned unserved with a shara "not claimed". Inspite of the best efforts made by the plaintiff, the defendants have failed to execute the sale deed. Therefore, the plaintiff has prayed for specific performance of the sale agreement dated 19.2.2007 and to put the plaintiff in possession of the suit schedule property.

The respondents i.e., the defendants 1 and 2 were served and they were placed ex-parte before the Trial Court.

The plaintiff has examined himself as PW.1 and exhibits P1 to P8 have been marked.

The Trial Court considering the material on record has dismissed the suit holding that the plaintiff has failed to prove the execution of the sale agreement and saleable title of the respondents i.e., the defendants.

Aggrieved by that, the appellant-plaintiff has filed this appeal.

The learned counsel for the appellant contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the evidence of PW.1 i.e., the plaintiff remains unchallenged. There was no reason for the Trial Court to disbelieve the evidence of PW.1 or the documents produced by the plaintiff. Therefore, the Trial Court was not justified in dismissing the suit. He, therefore, submitted that the impugned judgment and decree cannot be sustained in law.

Service of notice to the respondents is held sufficient and they remain unrepresented.

I have carefully considered the submissions made by the learned counsel for the appellant.

The point that arises for my consideration is:

Whether the impugned judgment and decree calls for interference?

It is relevant to note, the suit is for specific performance of the sale agreement dated 19.2.2007. The plaintiff contends, initially the defendants had borrowed a sum of Rs. 4,25,000/- from him. Thereafter, the defendants approached the plaintiff and offered to sell the suit schedule property for a sum of Rs. 10,50,000/-. The plaintiff paid further sum of Rs. 4,75,000/- by cash. The balance payable was Rs. 1,50,000/-. Inspite of demand and legal notice dated 19.03.2008 the defendants failed to execute the sale deed. Therefore, the plaintiff has prayed for specific performance of the sale agreement dated 19.2.2007.

The respondents i.e., the defendants though served, have not participated in the proceedings.

No doubt the defendants have not participated in the proceedings. That does not absolve the responsibility of the plaintiff to prove his case to the satisfaction of the Court. The Trial Court taking into consideration that the plaintiff has not examined any witness to prove execution of the sale agreement and payment of sale consideration amount and that the saleable title of the defendants is not proved, has declined to grant the relief of specific performance.

The learned counsel for the appellant contended that if an opportunity is given, the plaintiff will lead further evidence. No doubt the plaintiff has examined himself as PW.1 and produced exhibits P1 to P8. For want of evidence, the Trial Court has dismissed the suit. The suit is for specific performance. An opportunity needs to be given to the plaintiff to lead further evidence. In the circumstances, it appropriate to remit the matter to the Trial Court for reconsideration.

Accordingly, the appeal is allowed and the impugned judgment and decree passed by the Trial Court in O.S. No. 25628/2008 is hereby set aside. The matter is remitted to the Trial Court with a direction to reconsider the same by giving opportunity to the plaintiff and concerned parties to lead their evidence. The plaintiff shall appear before the Trial Court on 16.11.2015. Before proceeding further, the Trial Court shall issue fresh notice to the respondents -defendants. It is needless to say, the Trial Court shall expedite the matter and dispose of the matter at the earliest.

Office is directed to send back the records forthwith.