M. MUNISWAMY Vs. GMS CONSTRUCTION PVT. LTD.

JUDGEMENT

(1.) The captioned appeal is filed by the defendant Nos.1 to 6, 8 to 10 and 14 challenging the judgment and decree passed in O.S.No.15132/2005 wherein the suit filed by the plaintiff for specific performance is decreed directing the defendants to execute sale deed in respect of suit schedule property by receiving the balance sale consideration.

(2.) The facts leading to the case are as under: The respondent/plaintiff filed suit for specific performance seeking relief of specific performance of contract in respect of suit schedule property bearing Sy.No.74 situated at Challaghatta Village, Varthur Hobli, Bangalore South Taluk measuring 13 guntas (about 14,000 sq.ft.) bearing HASB Katha Nos.157/A, 158/A and 159/A.

(3.) Learned counsel appearing for the appellants/defendants would vehemently argue and contend before this Court that the very suit filed by the respondent/plaintiff is not through a valid plaint signed by the competent authorized representative of the respondent/plaintiff Company. He would also contend and submit to this Court that the suit agreement is not signed by all the appellants/defendants and also does not bear any witness to the suit agreement. Learned counsel further would argue and contend before us that there are material inconsistencies in the legal notice and the plaint in regard to payment of further advance amount. He would vehemently argue and contend that in the legal notice dated 15.10.2004, it is stated that appellants/defendants had received a sum of Rs.8,50,000/- towards part sale consideration and there is absolutely no whisper in regard to alleged payment of Rs.50,000/- in the legal notice. This alleged payment of Rs.50,000/- in the year 2002 is pleaded for the first time in the plaint. Learned counsel would further vehemently argue and contend before this Court that since suit is abated on account of death of defendant Nos.7, 11, 12 and 13, it is to be deemed that suit against all the contesting defendants stood abated. He would submit to this Court that this material aspect is not taken into consideration and thereby the Court below has committed a grave error of law. He would also submit to this Court that there is a categorical admission by PW.1 examined by the respondent/plaintiff who has admitted in unequivocal terms that all the parties to the agreement have not signed the suit agreement.