K.B. ARASAPPA Vs. DAYANAND NARAYAN BONGALE

JUDGEMENT

(1.) HEARD Sri Prakash K.M., learned counsel appearing for petitioner. Order dated 23.06.2014 passed by XIX Addl. City Civil & Sessions Judge, Bangalore City, in O.S. No. 1409/2014 dismissing I.A. No. 2 filed by defendant under Order VII Rule 11(a)(d) of CPC, whereunder defendant had sought for rejection of plaint on two grounds namely:

(2.) TRIAL Court has rejected the application filed by defendant holding that Power of Attorney executed by Principal namely, plaintiff in favour of agent Sri Sathyanarayana Rao included the authority to file suit for recovery of money also and as such, it has come to a conclusion that it would not bar the plaintiff to file the present suit through Power of Attorney.

(3.) RESPONDENT -plaintiff has filed the suit in question against appellant -defendant for recovery of a sum of Rs. 62,57,168/ - with interest @ 12% p.a. contending inter alia that he had entered into a sale agreement with defendant on 23.08.2011, whereunder he had agreed to sell the property bearing No. VP Khatha No. 6, House List No. 357 & 358 situated at Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk, namely, the suit schedule property for a total consideration of Rs. 1,20,77,100/ - and before entering into an agreement, property was physically measured and it was found that there was a short fall of 668.5 sq.ft. than what was agreed to under the sale agreement, which was to the total extent of 7,377.5 sq.ft. and contended that parties agreed to incorporate Clause 10 in the sale agreement, whereunder the defendant is said to have agreed to compensate the plaintiff to the extent of land they may recover from the encroachers in respect of schedule property even after the registration and the compensation agreed to be paid by the purchaser -defendant to the vendor -plaintiff would be based on the computation of the sale price agreed upon under the agreement of sale which was on square foot basis. Plaintiff contended that on 20.8.2011 sale deed prepared by defendant was furnished to the plaintiff for execution by indicating the sale consideration as Rs. 73,77,500/ - instead of RS. 1,20,77,100/ - as agreed between the parties and on being questioned defendant informed the plaintiff that he will make arrangements to pay the plaintiff the difference of the amount and the consideration payable in respect of alleged short fall of land measuring 668.5 sq.ft. on plaintiff delivering the said piece of land and defendant also agreed to get the sale deed rectified to the extent of the difference in value by paying adequate stamp duty and registration charges and as such, believing his words, plaintiff claimed in the suit that he executed registered sale deed in favour of defendant on 23.08.2011 in respect of suit schedule property. It was also contended that defendant had sworn to an affidavit on the same day assuring the plaintiff to reimburse the sum equivalent to the loss undergone by the plaintiff as on the date of sale deed, if the defendant recovers the encroached land. It was contended that later on, plaintiff was able to identify the land measuring 668.5 sq.ft and requested the defendant to execute rectification deed and pay the balance amount which was not paid and the demand made by the plaintiff was not complied by the defendant. Hence, claiming the difference of consideration from the sale agreement and the sale deed together with value of the short fall land, plaintiff filed the suit in question. The plaint has been presented to by the Power of Attorney holder of plaintiff Sri N Sathyanarayana Rao as "Special Power of Attorney holder'' of plaintiff.