B V BASAVARAJ Vs. K L KUMARASWAMY

JUDGEMENT

(1.) These two appeals arise from the common judgment in the suits O.S.1977/1996 and O.S.2875/1996 on the file of XXV Additional City Civil Judge, (CCH23), Bengaluru. R.F.A.1165/2011 is preferred by the legal representative of the first defendant in O.S.1977/1996. RFA 1166/2011 was filed by the plaintiff in O.S.2875/1996 and after his death, his legal representatives came on record.

(2.) For the sake of convenience, throughout the discussion, the parties will be referred with respect to their position in O.S.1977/1996. In a nutshell, the pleadings in both the suits are as follows :

(3.) The first defendant in his written statement denied the plaint averments and contended specifically that in a partition that took place on 6.5.1968, the whole property situate at Shankarapuram was allotted to him, but the partition by metes and bounds did not take place. His younger brother P.V.Prabhudev was in occupation of the ground floor portion of the entire building at Shankarapuram. Actually in the partition he had been given a shop premises situate at New Tharagupete, Bengaluru. The first defendant was in occupation of this shop and after the partition he vacated it so that his brother could take its possession. But, his brother did not vacate the ground floor portion of the house. The first defendant also did not ask him to vacate because his parents were living with his younger brother in that house. In the year 1991, after the shifting of the market yard to Yeshwanthapura, first defendant suffered loss in his business. This resulted in making commitments financially. One such commitment was to clear the dues to the extent of Rs.1,40,000/- with interest at 18@ p.a. in relation to execution case No. 427/1986. Being unable to clear the decretal amount, the first defendant sold the ground floor portion of the schedule property to his younger brother Prabhudeva who had its possession already. Then, the first defendant put the plaintiff in possession of the plaint schedule property by mortgaging it to him on 7.11.1987. When he was deliberating whether to sell his house at East Anjaneya Temple Street or to raise new loan in order to satisfy the decree that was put into execution, the plaintiff approached and promised him that he would persuade the decree holder Mr.N.R.Chandran who was also his relative to settle the matter by accepting Rs.1,00,000/- in full and final satisfaction. It was for this reason the plaintiff agreed to make further payment of Rs.1,00,000/- to the first defendant in addition to Rs.1,00,000/- he had already paid at the time of the mortgage of the suit property. It is stated that in this background, the plaintiff persuaded the first defendant to enter into an agreement of sale and thus the agreement dated 15.2.1989 came into existence. The first defendant contended that after obtaining sale agreement, the plaintiff, as promised by him did not prevail upon N.R.Chandran to agree for the settlement. The first defendant therefore contended that he had to execute the agreement of sale in these circumstances; there was a fraud played on him, and the plaintiff used undue influence over him to execute the agreement of sale. It is also pleaded that in the agreement of sale, time up to 15.5.1989 was fixed for completing the transaction. Time was the essence of the contract. Since the plaintiff did nothing pursuant to the agreement, the suit has to be dismissed for this reason and the other reasons stated above.