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IN THE COURT OF THE SENIOR CIVIL JUDGE AT PUTTUR.

Present : Smt. [Link], M.A., B.L.,
Senior Civil Judge, Puttur.
Tuesday, the Twenty-Third (23rd ) day of December ,
Two thousand and Fourteen.

[Link]. 89 of 2011

[Link], S/o Late [Link] Raju, Hindu, aged about 35

years, Business, residing at 14/1, 5 th cross, Garve Palya,
Hongasandra, Bangalore,Karnataka.
.. PLAINTIFF.

// VERSUS //

[Link] Kumar, S/o [Link] Raju, Hindu, aged about 45

years, business, residing at No. 10, 1 st Main, Nanjappa Layout,
Adugodi, Bangalore, Karnataka.
.. DEFENDANT

This suit coming before me on1 3-11-2014 for final disposal in the
presence of Sri. [Link], Advocate for the Plaintiff and, [Link]
Reddy, Advocate for defendant, upon hearing the arguments on both sides,
and having stood over for consideration till this date, this Court delivered the
following:
JUDGMENT

This suit is filed by the plaintiff against the defendant for

specific performance of contract.
2) The brief facts of the plaint are that the defendant
approached the plaintiff on 18-11-2010 and offered to sell the plaint schedule
property to discharge his debts and family necessities and he represented that
the plaint schedule property is his absolute property. The plaintiff accepted the
offer of the defendant and negotiate with the defendant and arrived to the
conclusion on consideration of Rs. 5,00,000/-. They both entered into an oral
agreement. As a demand of defendants the plaintiff has paid Rs. 75,000/- to
the defendant by way of cash and demanded the defendant to enter into an
agreement of sale for which the defendant informed that after getting back the
pattadar pass book and title deed of pliant schedule property from the private
financier, he will execute sale agreement. The plaintiff requested the defendant
to bring back the pattadar pass book and title deed by discharging the said
loan. Again the defendant approached the plaintiff on 05-02-2011 and received
Rs. 1,00,000/- to discharge the said loan. On 23-03-2011 he also received Rs.
1,00,000/-. on 30-04-2011 also he received Rs. 74,000/- representing that he
will discharge the loan and get back the pattadar pass book and title deed.
Even then he has not get back the pattadar pass book and title deed. On 12-
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09-2011 the plaintiff went to the defendant and asked him to execute an
agreement. Accordingly they have entered into an agreement of sale and
again the plaintiff paid Rs. 33,000/- by way of cheque. The defendant also
issued cash receipt for the previous payments and also payments on the
agreement. Accordingly the defended has received Rs. 3,80,000/- from the
plaintiff and balance of sale consideration is Rs. 1,20,000/-.As per the
agreement the defendant has to execute sale deed within September, 2011.
The defendant has handed over the original sale deed to the plaintiff. The
plaintiff is always ready and willing to perform his part of contract and
approached the defendant on many occasions after 12-09-2011 with balance of
sale consideration of Rs. 1,20,000/-. To the utter dismay of plaintiff, the
defendant has been postponing to execute the registered sale deed. On
18-09-2011 the plaintiff approached the defendant and requested to execute a
registered sale deed after receiving the sale consideration but the defendant
has not responded properly and gave evasive answere and ultimately
refused to receive the balance of sale consideration and registered the sale
deed. The plaintiff gave a legal notice on 19-09-2011 to the defendant. Even
then the defendant evading to receive the notice. Having no other go the
plaintiff filed this suit. The plaintiff came to know that the defendant is trying to
create a certain documents in favour of 3rd parties. Hence the suit.
3) The defendant filed his written statement. The brief facts of
the written statement are one Thyaga Raju and Bhaskar Raju are co-brothers.
This defendant is close relative of one Varalakshmi W/o Bhaskara Raju and
Sreedevi wife of Thyaga Raju. The defendant purchased the plaint schedule
property along with other properties with the financial assistance of
Varalakshmi. Thyagaraju also purchased lands adjacent to the plaint schedule
land. The plaintiff, defendant, Thyagaraju and Bhaskar Raju are interrelated.
Thyagaraju is known litigant and went upon creating false documents.
Thyagaraju intended to purchase the plaint schedule and other properties from
the defendant, but the defendant expressed unwillingness and informed that he
has executed an agreement of sale in favour of Varalakshmi. Since Thyagaraju
did not like it, he created all the documents filed in the suit by forgering the
signature of the defendant. He also created cash receipts. The creation of suit
agreement for Rs. 5,00,000/- is false. The suit property values Rs.
20,00,000/-. Hence the suit is liable to be dismissed.
4) Basing on the pleadings of both parties the following issues are
framed:
1. Whether the suit agreement is executed by the
defendant ?
2. Whether the plaintiff is entitled for specific
performance of contract ?
3. Whether the plaintiff is entitle for refund of money ?
4. To what relief?
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5. In this suit, on behalf of plaintiff, [Link].1 and 2 were examined and

Exs. A1 to A8 are marked. On behalf of defendants, D.W. 1 was examined
and no documents are marked .
6. Heard both sides.
7. Issue No.1 : According to the plaintiff, the defendant
executed sale agreement and also passed receipts for the payments made by
him. The defendant denied the execution of sale agreement and cash receipts.
Ex.A1 is the sale agreement, Ex.A5 is endorsement receipt. These two are
denied by the defendant. For the execution the defendant cross examined and
plaintiff deposed that Devarajulu and Nagabhushanam were present when he
paid the amount to the defendant. Though the defendant suggested that the
value of the property is more than Rs. 20,00,000/- and argued that Rs.
20,00,000/- wroth property will not be sold for a consideration of Rs.
5,00,000/- and hence the agreement is false. But the defendant did not file
any valuation certificate of Registrar into Court to prove that the property is
worth Rs. 20,00,000/-. The defendant cross examined that as per the
agreement it should be completed in September, 2011. According to the
plaintiff the defendant postponing the execution of sale deed stating that the
pattadar pass book and title deed are deposited with the private financier and
he did not bring them. He also cross examined that there is no word of
registration in Ex.A1. But on perusal of Ex.A1 in column NO.3 balance of
payment of Rs. 1,20,000/- will be paid by the purchaser to the vendor at the
time of execution of the absolute sale deed and thus the completion the sale
transaction in the month of September, 2011 is there. Hence the absolute sale
deed is mentioned as the remaining amount should be paid at the time of
execution of absolute sale deed. The absolute sale deed is means that a
registered sale deed though the word registration may not be there, the
absolute sale deed is replaced by the parties.
8. The another cross examination is that the transaction should
be completed in September, 2011. The plaintiff got issued a legal notice under
Ex.A2 to the defendant on 19-09-2011 ie., in the month of September, 2011,
it shows that the same month of September it is the stipulated time the
plaintiff got issued legal notice itself shows the genuineness of the plaintiff.
With regard to the execution he deposed that himself and defendant went to
an advocate and get prepared Ex.A1. Since the defendant is his relative he did
not ask for the receipt of cash payments prior to the agreement. Since the
defendant denied the execution of sale agreement, the plaintiff relied upon the
payment of Rs. 30,000/- by way of cheque to the defendant to prove his case.
The defendant questioned that there is no mention about the payment of
cheque for Rs. 30,000/- in the cash receipt. This cash receipt is passed on 30-
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04-2011, the agreement was executed on 12-09-2011. but the sale

agreement contains that on 12-09-2011 ie., on the date of agreement a
cheque bearing No. 668890 for Rs. 30,000/- was paid. This cash receipt is
prior to the sale agreement. The sale agreement is dt: 12-09-2011 but cash
receipt is passed on 30-04-2011. The cheque is dt: 12-09-2011, hence the
payment of cheque is not mentioned in the cash receipt Ex.A5. By the date of
Ex.A5 the cheque was not given by plaintiff, that is why there is no mention
about the cheque in Ex.A5. The defendant also questioned that the payments
made by the plaintiff to the defendant prior to the agreement without any
notice or agreement is false. If the agreement has proved since the agreement
contains those payments, the payments automatically proves.
[Link] the defendant denied the execution of sale agreement,he
cross examined with regard to the difference in the signature of defendant in
Ex.A1 comparing the signatures of defendant in Vakalath and written
statement. The comparison of signature on the disputed document comparing
with the signatures in the vakalath and written statement is not correct.
According to his cross examination the initial A, R and K are differing from the
signatures of defendant in Vakalath and written statement comparing with the
said agreement Ex.A1. As stated about the comparison of signature on
disputed document cannot be compared with the written statement and
Vakalath of defendant. Since the defendant prepared to deny his signature in
the disputed document, there is very chance to change his signature in the
Vakalath and written statement. However on comparison of signatures there is
no much difference in between the signatures in the Vakalath and written
statement to the agreement. However neither the parties nor the Court are
experts in comparing the signatures. It is the burden of the parties to prove
the documents and its signatures.
10. The another contest is that the plaintiff did not send the
legal notice to the defendant to the correct address. According to the plaintiff
he has issued legal notice to the address mentioned in the agreement.
Admittedly the legal notice is not served to the defendant. According to plaintiff
for 9 or 10 years the defendant lived in one house, he do not know from the
last year. That means this deposition is given by the plaintiff on 24-07-2014,
last one year means in the year 2013 but this suit is filed in the year 2011. that
is why according to the plaintiff, the defendant has been residing in the same
address mentioned in the agreement even by the date filing of the suit and also
by the date of giving legal notice. The defendant suggested that the defendant
changed his previous house,if it is so the defendant would have given notice
mentioning the change of address in the notice but he did not give any notice
mentioning his new address. To disprove the execution of sale agreement, the
defendant denied the execution and plaintiff tried to prove that the sale
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agreement was executed by the defendant, he stated that the original

document of plaint schedule property of defendant is given to the plaintiff. To
deny the same, the defendant suggested that he kept his sale deed with
Thyagaraju and Thyagaraju handed over the said sale deed to the plaintiff.
According to the defendant the plaintiff and defendant are relatives to
Thyagaraju. But though he is a relative he need not mention the relationship in
between him and Thyagaraju but we cannot believe that the document of
defendant is kept with Thyagaraju. He has to give the reason why he kept the
said valuable document with Thyagarju but he did not give any such reason.
Moreover the defendant himself stated that Thyagaraju is a known litigant and
he went upon creating documents. In such case being known person to the
defendant as he is relative to Thyagaraju as to why he kept his document with
Thyagaraju. Till today though the defendant claiming that he kept the
document with Thyagaraju and Thyagaraju handed over the same to the
plaintiff, he did not give any legal notice to Thyagaraju that he gave the said
document to the plaintiff or he did not take any action against Thyagaraju on
that aspect.
11. The plaintiff also relied on the statement of bank account
which shows that he passed a cheque for Rs. 30,000/- to the defendant and the
defendant en cashed it to prove that he paid the said amount to the defendant
on the date of sale agreement. In agreement the number of cheque, date and
amount is mentioned. The date of cheque dt: 12-09-2011 i.e., the date of
agreement. The cross examination of defendant is that the amount of Rs.
30,000/- for which cheque is passed is not there in the account on 12-09-2011.
For passing of cheuqe the amount need not be there in the account. Passing of
cheque is sufficient to pass the cheque. To encash the said cheque the amount
should be there in the account. According to the plaintiff and the statement
under Ex.A6 shows that on 14-09-2011 the defendant presented the cheque
and encashed the same. The other cross examination with regard to cheque is
that in the account of plaintiff, there is no amount of Rs. 30,000/- on other
days except on 13-09-2011 and 14-09-2011. whether it is there or not on the
previous dates or subsequent dates it is not necessary for the suit. By the date
of encashment the amount is there and the defendant encashed the amount
and received under the chque. The another cross examination is that Ex.A6 is
not valid, as there is no signature of the Officer in Ex.A6. But Ex.A6 contains
the signature of the bank official in the stamp of the bank, that is hwy it is
valid. The another cross examination on this aspect is that the plaintiff did not
issue any cheque on the date of agreement to the defendant but the statement
is manipulated to show that the cheque was given and encahsed. The another
cross examination is that the statement Ex.A6 contains Ravikumar is not the
defendant. But the statement clearly shows that the defendant encashed the
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cheque and received Rs. 30,000/- from the account of plaintiff. Though the
defendant cross examined that the account of plaintiff does not contain more
amount in the account.
12. From the above cross examination and from the evidence of
plaintiff, the plaintiff relied on the points to prove that the sale agreement is
executed by the plaintiff. The original sale deed of defendant is handed over to
him and he encashed the cheque issued by the plaintiff. On the other hand the
defendant relied on the points to prove that he has not executed the sale
agreement with the points that the sale deed is not handed over to him and
one Thyagaraju committed theft and handed over to the plaintiff, the plaintiff
has no capacity to purchase the property for which he relied on the statement
of the bank which shows no such amount, there is difference in between the
signatures of defendant in the sale agreement comparing with the admitted
signatures, notice is not served to him and the bank statement is not valid. To
prove the sale agreement the plaintiff examined P.W.2 who is attestor of Ex.A1
sale agreement.
13. P.W.2 is one of the attestors of Ex.A1 sale agreement. According
to him both the plaintiff and defendant known to him. On the date of execution
of sale agreement they went to one office and they got typed the sale
agreement and executed the sale agreement in his presence. The defendant
admitted that he has received the previous amounts and passed cash receipt.
The defendant cross examined, this witness that no consideration was passed
under Ex.A1 to the defendant. Since the defendant disputing the very
execution of sale agreement, he need not cross examine on the aspect of
consideration. If he admits the execution then only he has to dispute the
consideration. P.W.2 stated that on the date of Ex.A1 the plaintiff gave cheque
to the defendant and he stated that he already paid Rs.3,50,000/- and also
plaintiff paid Rs. 75,000/- to the defendant in his presence on the date of
negotiation. The cross examination of defendant is that none of the parties or
attestors put the date under their signatures. The defendant is not disputing
the date of sale agreement. Hence the date is not crucial and it is not his plea
that the date is altered. The execution of sale agreement itself is disputed, he
need not cross examine with regard to the date. The defendant also cross
examined that this person who giving evidence as P.W.2 is not the person who
signed in Ex.A1. It is not the plea of the defendant that he know the attestors
and he saw the attestors on the date of execution of Ex.A1 and hence he can
identify the attestor and this witness is not the attestor. Since he pleaded that
he do not now the attestors of Ex.A1, he cannot say that this witness is not the
attestor. He also cross examined that the fathers name and full address of the
attestors are not mentioned in Ex.A1 under their signatures. The signatures of
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attestors contains only the signatures and their address and telephone
numbers will not be there.
14. During cross examination the defendant admitted that the address
mentioned in his chief affidavit is the address mentioned in the legal notice in
Ex.A1. The defendant cross examined P.W.1 on the aspect that the defendant
has not been residing in the address mentioned in the legal notice, that is why
the legal notice is not served to him and the plaintiff changed the address of
the defendant but intentionally the plaintiff send to the previous address of the
defendant. If it is so why the defendant mentioned the same address in his
chief affidavit I.e, even after cross examination of P.W.1. It shows that the
defendant has been residing in the same address and he intentionally returned
the legal notice.
15. He also admitted that he has not filed any valuation certificate
into Court to prove that the plaint schedule property value is more than Rs.
20,00,000/-. With regard to the capaicty of the plaintiff, he suggested to the
defendant that the plaintiff has AC. 20.00 of land in his village. The plaintiff
also filed documents Exs. A7 and 8 which are sale deeds under which he has
purchased two house sites at Bangalore. Since the defendant disputed the
capacity of the plaintiff to purchase the plaint schedule property,he has proved
it.
16. The defendant also created another suit to disprove this
transaction. According to him he has executed a sale agreement in favour of
Varalakshmi and she has filed a suit in O.S.108/2012. In the said suit the
defendant remained exparte and later the defendant himself executed the sale
deed in favour of Varalakshmi. If really it is correct the defendant would have
enimity with Varalakshmi. But he admitted that he has executed gift
settlement deed in favour of son of Varalakshmi even prior to the execution of
sale agreement in her favour. It shows that Varalakshmi is close relative to the
plaintiff and hence only to evade the transaction against the plaintiff he has
executed the sale agreement in her favour. She has filed suit in the year 2012
whereas the plaintiff filed suit in the year 2011. In the said suit the defendant
remained exparte where as contesting this suit. Later she has not filed any
E.P., but defendant himself executed the sale deed in her favour basing on the
exparte decree. Since Varalakshmi is close relative to the defendant, he also
executed a gift settlement deed in favour of her son, the decree against the
defendant by varalakshmi is collusive decree. It shows that the defendant
though contested the suit on the points that he has executed another sale
agreement in favour of Varalakshmi it is a collusive decree, his another contest
the plaintiff has no capacity to purchase the property but plaintiff proved by
filing Exs. A7 and 8 documents that he has capacity. The another contest is
that he kept the documents with Thyagaraju and Thyagaraju gave the
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document to the plaintiff but the defendant did not take any action against the
said Thyagaraju. Moreover he stated in the evidence that he has no enmity
with Thyagaraju. That is why it is only a created story that he kept the
document with Thyagaraju and Thyagaraju handed over it. The another
contest is that he has not received any consideration and not executed the
document but he has received amount of Rs.30,000/- under the cehque and
he encashed the cheque it is proved under Ex.A6. If really there is no
transaction in between the plaintiff and defendant, he would not have
encashed the cheque from the account of plaintiff. It is not his case that he
has received the cheque in another transaction. That is why he has received
the cheque in this transaction, that is why he encahsed and also he executed
the sale agreement on the same day. Hence the plaintiff proved that the
defendant executed the sale agreement in favour of the plaintiff. Though the
defendant contested that he has already executed a sale agreement in favour
of Varalakshmi who filed a suit and obtained exparte decree and the defendant
already executed a registered sale deed in her favour but there is no evidence
either oral or documentary that whether the defendant has executed the said
sale agreement in favour of Varalakshmi either prior to Ex.A1 or subsequent to
Ex.A1. Hence we cannot say whether this Ex.A1 is the first agreement or
subsequent agreement, however it is the agreement in favour of the
Varalakshmi is collusive and the decree is also a collusive decree. As discussed
above it can be concluded safely that Ex.A1 sale agreement is executed by the
defendant in favour of the plaintiff. Issue NO.1 is answered accordingly.

17. Issue Nos. 2 and 3 : The plaintiff filed this suit basing on the sale
agreement executed by the defendant for specific performance of contract to
execute sale deed in his favour by receiving the balance of sale consideration
by the defendant. In alternative he also prayed for refund of earnest money
which was given by him to the defendant under Ex.A1 sale agreement. Hence
we have to decide whether the plaintiff is entitled for specific performance of
contract or for refund of the amount paid by the plaintiff to the defendant. In
this case the plaintiff was ready and willing to perform his part of contract but
the defendant failed to execute the sale deed in favour of the plaintiff and
more over he has executed another sale deed in favour of one Varalakshmi
who is his close relative. It shows the intention of the defendant to evading
nature to execute register sale deed in favour of the plaintiff. However since
the plaintiff proved that the sale agreement is executed by the defendant and
he has paid the amount under the sale agreement, the plaintiff is entitled for
specific performance of contract but not for refund of the amount made by
him. Issue Nos. 2 and 3 are answered accordingly.
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15. Issue NO.4 : In the result, the suit is decreed with costs.
One month time is granted to the plaintiff to deposit the remaining sale
consideration and two months time is granted to the defendant to execute sale
deed in favour of the plaintiff from the date of this judgment .

Dictated to the Personal Assistant, transcribed by her, corrected

and pronounced by me in Open court, this the 23 rd day of December, 2014.

Senior Civil Judge,

Puttur.

Appendix of evidence

Witnesses examined

For plaintiff.
P.W.1: [Link]
P.W.2: [Link]
For defendants::
D.W.1: [Link] Kumar

Exhibits marked

For Plaintiff:

Ex.A1: Agreement of sale dt: 12-09-2011

Ex.A2: Office copy of legal notice dt: 19-09-2011
Ex.A3: Returned postal cover
Ex.A4: Registered sale deed dt: 31-01-1997
Ex.A5: Payment endorsement receipt dt: 30-04-2011
Ex.A6:Copy of statement issued by the Vijaya Bank, Bangalore
Ex.A7: Certified copy of registered sale deed dt: 12-12-2002
Ex.A8: Certified copy of registered sale deed dt: 04-11-2006

For defendants:

:: N I L ::

SCJ,
PTR.