KRISHNAPPA Vs. K N SRIDEVI

JUDGEMENT

(1.) This Writ Petition Is Directed Against The Order Dated 25.3.2011 In O.S.No.5986/2010 On The File Of The 30Th Additional City Civil Judge, Bangalore City, Whereby The Application Filed By The Petitioner Under Order 38 Rule 5 Of The Cpc For An Order Of Attachment Before Judgment Attaching The Suit Schedule Property Has Been Dismissed. The Petitioner Is The Plaintiff In The Suit And The Respondent Is The Defendant. For The Purpose Of Convenience, The Parties Are Referred To By Their Respective Ranking Before The Trial Court. The Plaintiff Filed The Above Suit Against The Defendant For Recovery Of A Sum Of Rs. 95,20,000/- Together With Future Interest At 18% Per Annum From The Date Of The Suit Till The Date Of Realisation. In The Suit, The Plaintiff Has Contended That The Defendant Being The Absolute Owner Of The Suit Schedule Property Had Executed An Agreement Of Sale Dated 25,6.2007 Agreeing To Sell The Said Property In His Favour For A Sale Consideration Of Rs. 75 Lakhs And As On The Date Of The Execution Of The Sale Agreement, He Has Paid A Sum Of Rs. 47,70,000/- By Way Of Cash And Rs. 50,000/- By Way Of Cheque And Another Cheque For Rs. 1,80,000/-. Thus, In All, The Plaintiff Has Paid Rs. 50 Lakhs To The Defendant And The Same Has Been Duly Acknowledged By The Defendant. He Has Paid Another Sum Of Rs. 3 Lakhs By Way Of Cash On 26.9.2007. As Part Of The Contract, The Plaintiff Was Further Required To Pay Loan Amount Of Rs. 12 Lakhs Borrowed By The Defendant From The Rajajinagar Co-Operative Bank Limited, Rajajinagar. In Pursuance To The Same, The Plaintiff Has Discharged The Loan Of The Defendant Taken From Rajajinagar Cooperative Bank Limited Amounting To Rs. 12 Lakhs. Thus, In All, The Plaintiff Has Paid A Sum Of Rs. 65 Lakhs, Out Of Which, Rs. 53 Lakhs As Advance Sale Consideration And Rs. 12 Lakhs By Clearing The Loan Amount Of The Defendant. It Is Further Contended That The Plaintiff Was Ready And Willing To Pay The Balance Of The Sale Consideration. However, The Defendant Showed Her Dissent Towards Performance Of Her Part Of The Contract And Failed To Execute And Register The Sale Deed In Favour Of The Plaintiff By Receiving The Balance Of Sale Consideration. On 21.7.2008, The Defendant Approached The Plaintiff And Expressed Her Unwillingness And Inability To Execute The Sale Deed In Favour Of The Plaintiff. However, The Defendant Assured To Return The Advance Sale Consideration Received Along With The Liquidated Damages. On 21.7.2008, The Defendant Got Executed A Sale Deed In Favour Of The Plaintiff In Respect Of A Flat Bearing No. 404 Constructed On The Property Bearing No. 343/2, New Katha Nos.397 And 398 Situated At Shanthi Layout, Kaudenahalli Village, K.R. Puram Hobli, Bangalore East Taluk. The Defendant For The Reasons Best Known To Her, Did Not Come Forward To Execute The Sale Deed Or Pay Back The Advance Payment Paid By Him Towards The Purchase Of The Suit Schedule Property. However, She Has Executed An Agreement On 18.8.2008 Wherein She Has Admitted To Pay Rs. 53 Lakhs, Which Was Taken As Advance And Rs. 17 Lakhs As Liquidated Damages Which Includes A Sum Of Rs. 12 Lakhs Paid By The Plaintiff To Clear The Loan Amount Of The Defendant And Another Sum Of Rs. 5 Lakhs As Agreed By The Agreement Dated 25.6.2007. Thus, In All, She Has Agreed To Pay Rs. 70 Lakhs In Favour Of The Plaintiff. It Was Further Agreed Under The Said Agreement That The Defendant Shall Hand Over The Physical Possession Of The Flat Referred To Above Failing Which Defendant Shall Pay A Sum Of Rs. 10,000/- As Monthly Rental Charges Till The Delivery Of Handing Over Of Possession Of The Said Flat. But The Defendant Did Not Pay The Said Amount Nor Fulfilled The Obligations Created Under The Agreement Dated 25.6.2007. On Verification, The Plaintiff Found That The Said Flat Was Not Yet Completed And The Property On Which Flats Were Constructed Is Under Litigation And Therefore, The Plaintiff Did Not Opt To Have The Said Flat. Hence, The Plaintiff Restricted His Claim Only Towards Refund Of Advance Sale Consideration Of Rs. 53 Lakhs And Liquidated Damages Of Rs. 17,00,000/- Pursuant To The Agreement Dated 18.8.2008.

(2.) The Plaintiff Has Filed An Application Under Order 38 Rule 5 Of The Cpc For Attachment Before Judgment Of The Plaint Schedule Properties. He Has Reiterated The Plaint Averments In The Affidavit Filed In Support Of The Application. He Has Further Contended That The Defendant Is Contemplating To Sell The Suit Property In Favour Of The Third Parties So As To Defeat His Right Created Under The Agreement. She Has Already Negotiated With The Third Party For Sale Of The Suit Schedule Property. She Has Disposed Of The Ground Floor Portion To One Anoop Kumar By Executing A Registered Sale Deed Dated 2.4.2009. The Execution Of The Sale Deed During The Subsistence Of The Sale Agreement Clearly Shows The Intention Of The Defendant To Defeat The Right Of The Plaintiff. If The Suit Property Is Not Attached Before Judgment, The Plaintiff Would Be Put To Irreparable Loss And Hardship.

(3.) The Defendant Has Filed Her Written Statement Denying The Plaint Averments. It Is Contended That She Is Running The Ladies Hostel At Malleshwaram. The Plaintiff Is A Financier. On 27.6.2007, When The Defendant Had Approached The Plaintiff For Financial Assistance Of Rs. 2,50,000/- In Order To Purchase Hostel Cooking Equipments Articles, The Plaintiff Has Lent A Sum Of Rs. 2,30,000/- By Way Of Two Cheques Subject To Payment Of Interest At 2% Per Annum. The Defendant Used To Pay Interest Of Rs. 4,600/- Per Month By Way Of Cash. The Plaintiff Was Not Issuing Any Receipts For Having Received The Interest. On 22.11.2007, When The Defendant Approached The Plaintiff For Further Financial Assistance Of Rs. 9 Lakhs To Discharge Her Loan Obtained From Rajajinagar Co-Operative Bank Limited, The Plaintiff Paid A Sum Of Rs. 9 Lakhs To The Defendant By Way Of Three Cheques. He Took The Title Deeds Of The Property Bearing No. 48/1, 8Th Cross, Maramma Temple Street, Malleshwaram, Bangalore. He Also Obtained Signature On Old Blank Stamp Papers And On Certain Demand Promissory Note And Consideration Receipt And Blank Cheques As Security For The Said Purpose. The Defendant Has Paid A Sum Of Rs. 6,50,000/- To The Plaintiff On 20.4.2009 By Way Of Transfer Of The Amount From Her Savings Bank Account. She Was Due In A Sum Of Rs. 4 Lakhs To The Plaintiff Towards Balance Of The Loan Amount. On 5.5.2010, The Plaintiff Visited The Defendant's House With An Agreement Of Sale For Sale Of The Property In Question For Rs. 75 Lakhs. The Defendant Refused To Sign On The Said Document And Requested For Grant Of More Time To Pay The Entire Outstanding Dues For Which The Plaintiff Refused. On 13.5.2010, The Plaintiff Visited The Defendant's House And Forcibly Took The Signature On The Sale Agreement. In This Connection The Defendant Filed A Private Complaint Before The 7Th Additional Chief Metropolitan Magistrate, Bangalore On 24.5.2010. Thereafter, The Plaintiff Stopped Visiting The Defendant's House. The Defendant Is Not Due Any Amount As Stated In The Plaint. She Is Only Due In A Sum Of Rs. 4 Lakhs To The Plaintiff. She Is Ready To Pay The Said Amount Subject To The Plaintiff Returning The Original Title Deeds Of The Property.