DODDARAJAPPA K B Vs. C R VENKOBA RAO

JUDGEMENT

(1.) These appeals are directed against the Judgment and Decree in O.S. No. 94/ 62 on the file of the then Principal District Judge, Bangalore City. Later the suit was transferred to the file of the I Addl. Civil Judge, Bangalore City and re-numbered as O.S. No. 119/94. Defendants 1 to 7 are the appellants in R.F.A. No. 95/75 and plaintiff is the appellant in R.F.A. No. 107/75.

(2.) In the course of the judgment, we will refer to the parties according to the rank assigned to them in the trial Court.

(3.) Plaintiff filed the suit for specific performance of a contract. The facts leading to the filing of the suit may be briefly stated as follows : Plaintiff, in response to an advertisement he saw in the newspaper "Deccan Herald" made enquiries about the public auction of premises No. 74/125 (old) New No. 3, situated in 5th Cross, Narasimharaja Colony, Bangalore. The advertisement for public auction was inserted by a firm of auctioneers known as "Reliable Auctioneer" apparently under the instructions of one Sait Chaganmal Ghasiram. The said Sait Chaganmal Ghasiram and the Reliable Auctioneer are the 8th and 9th defendants in the suit. Ultimately the auction took place on 2-8-1962. At that auction, plaintiff was the highest bidder having did the suit schedule property for Rs. 22,250/-. In accordance with the terms set by the auctioneer, the 9th defendant, he paid 1/4th of the bid amount to the auctioneer. The terms of the auction were such that the balance of the bid amount was to be paid on or before 17-8-1962 and within 15. days therefrom, the conveyance deed was required to be got executed and registered. However, plaintiff met defendant-8 the power of attorney holder of the owners on the date of the auction and sought inspection of the relevant documents in pro of of the vendor's title and he was promissed that the same would be furnished for inspection before 17-8-1962, the date fixed for payment of the balance bv the successful bidder. Accordingly, the 8th defendant furnished on or about 6-8-1962 certain other documents (copies) which disclosed that the first defendant was acting under the power of attorney given to him by his son, the 4th defendant in the matter of the sale, of plaint schedule property. Plaintiff, on further enquiries, learnt that the said power given by 4th defendant was later cancelled by him and that there were other Court Proceedings relating to the family of the 1st defendant the details of which plaintiff could not ascertain inspite of his diligentenquiries. Plaintiff, therefore, sought a clarification by issuing a notice dated 9-8-1962 to the auctioneers as well as the 8th defendant. Those notices were replied to by the 8th and 9th defendants. In the replies furnished, it was made known to plaintiff that the 8th defendant was competent to convey title to the suit schedule property and, therefore, he may pay to him Rs. 1,000/- towards conveyance charges including registration fee. Accordingly, on 17-8-1962, 8th defendant was paid a sum of Rs. 1,000/- by plaintiff in addition to the sum of Rs. 5,625/- paid on 2-8-1962 to the auctioneers. Plaintiff also obtained encumbrance certificate in respect of the property. He also got ready the balance of the sale consideration to be paid to the 8th defendant. Plaintiff has asserted that the transaction could not be gone through on 17-8-1962, as the 8th defendant was out of town on r about that date. In this position, plaintiff received on 21-8-1962 a notice from the counsel of defendants 1 to 7 intimating plaintiff that the power of attorney granted by the 2nd defendant had been cancelled in the year 1957 itself and the power of attorney given by the 1st defendant to 8th defendant had also been cancelled and in effect, the notice repudiated and cancelled the contract and their obligations arising under the contract to plaintiff in respect of the auction sale. Plaintiff has further asserted that defendants 1 to 7 had knowledge of the auction sale, as they had been intimated of the auction sale by telegramme by 8th defendant. In that circumstance, plaintiff caused another notice to be issued to 8th defendant calling upon him to get the owners also to join in the execution of the sale deed. Admittedly, the balance of bid amount was not paid to the auctioneers, 9th defendant on or before 17-8-1962. In that circumstance, as plaintiff was ready and willing to parform his part fo the contract and the defendants had not performed their obligations arising out of the auction sale, he filed the suit for specific performance of conveying th suit schedule property in his favour on acceptance of the balance of consideration. In the alternative, if specific performance was not granted, plaintiff prayed that the amount he had paid by way of 1 4th of the consideration on the date of auction and Rs. 1,000/- paid to 8th defendant towards conveyance charges and registration fee should be directed to be refunded together with interest at 12 per cent per annum from 21-8-1962 till date of realisation.