IN THE HIGH COURT OF KARNATAKA AT BANGALORE

R.F.A. NO. _____________________/2016

BETWEEN

Madhusudhanan Appellant

AND

A.P. Sudhakaran Respondent

SYNOPSIS

16.05.2011 Agreement of Sale was entered into between

the Plaintiff and the Defendant for the sale
of the lands owned by the Defendants
situated at Marchahalli village H.D. Kote
Taluk. Sale consideration Rs. 36,00,000/-
Plaintiff paid advance of Rs. 6,00,000/-
Exhibit P-1.

18.05.2011 Marriage of the daughter of Defendant was

schedule to be formed at Calicut. Exhibit
D-6.

29.08.2011 Plaintiff paid Rs. 3,00,000/- to the loan

account of the Defendant in Kaveri
Grameena Bank, Hampapura by
transferring it from the S.B. A/c of the
Plaintiff No. 85002390029 Exhibit D-9

08.10.2011 Plaintiff paid Rs. 2,00,000/- to the loan

account of the Defendant in Kaveri
Grameena Bank, Hampapura by
transferring it from the S.B. A/c of the
Plaintiff No. 85002390029 Exhibit D-9.

03.04.2012 Plaintiff paid Rs. 7,55,000/- to the

Defendant through a cheque from his S.B.
Account 85002390029 and said amount
was transferred from the S.B. Account of
the Plaintiff to the Loan account of the
Defendant. An amount of Rs. 7,52,771/-
was taken to the Loan Account and Rs.
2,229/- was taken to the S.B. Account of the
Defendant Exhibit D-9. Plaintiff paid a
sum of Rs. 17,55,000/- in cash to the
 Defendant. An endorsement was written by
the Defendant in his own handwriting on
Exhibit P-1 recording the receipt of Rs.
23,55,000/- which amount is the total of
Rs. 6,00,000/- paid under the agreement
of Sale on 06.05.2011 and Rs. 17,55,000/-
paid in cash on 03.04.2012. Endorsement
attested by four witnesses. Exhibit P-1a.

17.01.2013 Defendant issued a legal notice through his

Advocate calling upon the Plaintiff to
execute the Sale Deed Exhibit P-2.

04.02.2013 Defendant sent a reply to the legal notice

admitting the execution of the Sale
Agreement but denying receipt of Rs.
17,55,000/- on 03.04.2012. Defendant
contended that Plaintiff paid Rs. 23,55,000/-
including the sale consideration of Rs.
6,00,000/- paid on 16.05.2011. Exhibit P-3.

05.08.2013 Plaintiff filed O.S. No. 86/2013 seeking

specific performance of agreement of sale
and alternatively for refund of Rs.
36,10,000/- paid by the Plaintiff to the
Defendant with interest at 18%.

05.02.2016. Trial Court decreed the suit in part. Relief

of specific performance was refused. Suit
was decreed for refund of earnest money of
Rs. 23,55,000/- with 6% interest from the
date of the suit till realization.

BRIEF FACTS

Plaintiff in O.S. No. 86/2013 is the Appellant in the

above Appeal. Defendant in the said suit is the Respondent
in this appeal.

O.S. No. 86/2013 was filed for relief of specific

performance of agreement of sale dated 16.05.2011, for
direction to hand over possession of the suit property or in
the alternative for refund of Rs. 36,10,000/- with interest at
18% per annum.

Plaintiff and the Defendants were friends for 8 years.

Defendant was residing at Calicut earlier. Defendant moved
to Marchahalli seven years earlier to the filing of the suit.
Defendant incurred loans in Cauvery Kalapathuru Grameena
Bank, Hampapura branch, H.D. Kote. Defendant could not
repay the money and bank took coercive steps against the
Defendant for recovering the money. Marriage of the
Defendant daughter was fixed to be conducted on
18.05.2011. Defendant approached the Plaintiff agreeing to
sell the suit schedule property situated at Marchahalli
village and agreement of sale was entered into on 16.05.2011.
Sale Consideration was fixed at Rs. 36,00,000/- Plaintiff paid
an advance of Rs. 6,00,000/-. Defendant agreed to discharge
the loan availed by him from Kaveri Kalapathuru Grameena
Bank, agreed to get the lands surveyed, agreed to get the
survey sketch prepared and agreed to hand over the title
deeds, possession certificate tax paid receipt etc., after
discharging the loan.

Defendant failed to discharge the loan. Plaintiff opened

S.B. A/c No. 85002390029 in Cauvery Kalapathuru
Grameena Bank, Hampapura for the purpose of discharging
the loan of the Defendant on 29.08.2011 an amount of Rs.
3,00,000/- was transferred from the S.B. Account of the
Plaintiff to that of Defendant Loan Account. Again a sum of
Rs. 2,00,000/- was transferred to the Loan account of the
Defendant from the S.B. Account of the Plaintiff on
08.10.2011. Plaintiff paid Rs. 7,500,000/- on 03.04.2012 by
issuing a cheque and the Defendant encashed the same in
the loan account of the defendant. Thus the Defendant has
paid an amount of Rs. 12,55,000/- to the Loan account of
the Defendant.

On 03.04.2012 Plaintiff paid an amount of Rs.

17,55,000/- in cash. The Defendant in his own hand writing
acknowledged the receipt of the said money. Endorsement
was for Rs. 23,55,000/- consisting of Rs. 6,00,000/- paid
on 16.05.2011, Rs. 17,55,000/- paid in cash on
03.04.2012. Said endorsement was attested by four
witnesses. Amongst the four witnesses M.R. Harshan is the
co-brother of the Defendant and Jayaprakash was his friend.

On failure of the defendant, Plaintiff got issued legal

notice dated 07.01.2013 and defendant sent a reply on
04.02.2013.

Defendant filed Written statement denying the entire

averments made in the plaint. He denied that he had
incurred any loans in Cauvery Kalapathur Grameena Bank.
He admitted that marriage of his daughter on 18.05.2011
but denied that he was in need of money for performing the
marriage of his daughter and that he was not in a position to
raise money for conducting her marriage. Defendant admitted
the Sale Agreement dated 16.05.2011 Receipt of money in a
sum of Rs. 6,00,000/- as advance. He also denied as false
that he has agreed to repay the loan availed from Cauvery
Kalapathuru Grameena Bank and to hand over the original
documents.

Defendant contended that he had received Rs.

12,55,000/- towards the loan of the defendant in addition to
the advance amount of Rs. 6,00,000/-

Defendant contended that on 03.04.2012 he did not

receive Rs. 17,55,000/- in cash and did not make
endorsement for Rs. 23,55,000/- and that the said
endorsement was not attested by four witnesses.

Plaintiff himself was not ready and willing to perform

his part of contract. Plaintiff failed to pay the balance of sale
consideration therefore prayed for dismissal of the suit.

The Trial Court held that the recital in Exhibit P-1A

dated 03.04.2012 shows that Defendant has received Rs
23,55,000/- till 03.04.2012 and the said fact was admitted
by the Defendant and that Plaintiff has failed to prove
payment of Rs. 17,55,000/- cash amount on 03.04.2012.

The Trial Court decreed the suit in part granting refund

of Rs. 23,55,000/- with interest at 6% from the date of the
suit till realization.
 Plaintiff has preferred the above appeal seeking refund
of balance of Rs. 12,55,000/- with interest at another 6% on
the said amount, and the cost of the suit.

PLACE: BANGALORE

DATE: ADVOCATE FOR APPELLANT.