IN THE COURT OF THE XIX JUNIOR CIVIL JUDGE: CITY CIVIL COURT
HYDERABAD
Monday, the 23rd day of April, 2012
PRESENT: Smt. G. BHANUMATHI, B.A., M.L.,
XIX JUNIOR CIVIL JUDGE.
O.S.No.1904 of 2010
Between:
K.Ramana Rao...Plaintiff
AND
1. V.Naga Raju
2. Kawali Krishnaiah...Defendants
This suit coming on this day before me for final disposal in the presence of Sri A.Sanjeeva Reddy,Advocate for Plaintiff, Sri S.Praveen, Advocate for Defendant No.1 and Sri P.Surendra babu, Advocate for Defendant No.2 and the matter having been heard and stood over for consideration till this day, the court delivered the following:
J U D G M E N T
The plaintiff filed suit filed for recovery of money for Rs.94,000/ against the defendants along with interest and costs of the suit.
2.The brief averments of plaint are as follows: The plaintiff searching for purchasing of the residential plots in the year 2007, and the plaintiff come across with the first defendant who informed that he was in the field of real estate business and he can secure the plot for the plaintiff. D1 shown the plot owned by the second defendant. The plaintiff satisfied and prepared to purchase the same, then D1 produced authorization letter given by the D2. After gone through the authorization and original title deeds of D2 the plaintiff agreed to purchase the plot for sale consideration of Rs. 3,20,000/ and on the basis of authorization letter 2O.S.No.1904 of 2010 the plaintiff paid Rs. 50,000/ through cheque date 3082007 drawn on Andhra
Bank as advance cum part sale consideration out of total consideration of Rs.
3,20,000/ D1 executed the receipt on 3082007 acknowledging the receipt of the amount and wife of the 2nd defendant signed as a witness to the said receipt as the advance was paid in the presence of the 2nd defendant wife after finalisation of the negotiations in respect of said plot and the same transaction is in the presence of the wife of the D2 and within the knowledge of the D2. On the same day D1 agreed to get it registered of the plot by procuring presence of D2 owner of the property
before the office of SRO on 692007 by accepting the balance sale consideration.
The plaintiff went of the SRO Ibrahimpatnam on 692007 with balance consideration but D1 failed to come along with D2 with out assigning any lawful cause. The plaintiff questioned the same D1 tendered apology and promised to bring D2 for registering the plot on 1092007 but failed. Plaintiff got issued legal notice on 30112007 demanding D1 and D2 to execute the sale deed in favour of the plaintiff by accepting the balance sale consideration. D2 received the notice but failed to give the reply and D1 received the same and gave false reply on 27122007 stating that the amount received by him is towards the commission.
Rejoinder got issued by the plaintiff on 412008 denying the contention of D1.
There is no agreement or understanding between D1 and plaintiff for payment of commission of Rs. 50,000/ . D1 who is having authorization and received part of sale consideration failed to get it executed the sale deed from the registered owner of the property in the name of the plaintiff . D1 illegally retained the amount and enjoyed the same and failed to return back the amount even after completion of 2 3O.S.No.1904 of 2010 and half years. On 152010 the plaintiff got issued telegraphic notice to the defendant demanding the amount with interest at the rate of 24% per annum till its payment. But defendant failed to pay amount. D1 received the amount and D2 authorized D1 to receive the amount and amount paid to D1 in the presence of the wife of D2 and failed to got execution sale deed in favour of the plaintiff. The plaintiff has spent Rs. 10,000/ for this transaction. Both D1 and D2 are liable to pay the principal of Rs. 50,000/ and interest at the rate of 24% per annum from 30 82007 to 452010 and also subsequent interest and expenses 12,000/ and totally
D1 and D2 jointly and severally liable to pay an amount of Rs. 94,000/. Hence the suit.
3.D1 filed written statement and brief averments of the written statement are as follows: The suit is not maintainable under law or on facts. D1 is a real estate broker by profession and he used to take commission from both vendor and vendee when the vendee interested to purchase any immovable property. The duty of D1 is only to convincing the parties for round figure and to explain the history and title of the immovable properties. If the parties agreed to enter into the contract D1 will take commission from both parties. In this connection D2 who is the owner of the plot situated at Raipole Village approached the D1 and requested to dispose of the plot as he is urgent need of money and also agreed to pay Rs. 50,000/ towards commission and being vendor executed a authorization letter on 3082007 in favour of D1 and as per authorization letter D1 authorised to receive the amount of his commission as well as sale consideration of the plot but D1 received only sale consideration. The plaintiff who is searching for the residential plot approached the 4O.S.No.1904 of 2010
D1 and after fully satisfied with the title and things agreed to purchase the plot of
D2 and as per agreement the plaintiff have to pay the commission amount to D1.As such the duty of D1 is completed and it is the duty of D2 to receive the amount and execute the sale deed in favour of the plaintiff and if any disputes arose between the plaintiff and D2 it is their duty to settle the dispute amicably. In this case the plaintiff and D2 colluded each other and falsely implicated the D1 name in the litigation. After receiving the commission D1 conducted the meeting with the plaintiff and Defendant no2 and plaintiff agreed to pay valuable sale consideration to the D2 and thereafter disputes arose between them and this D1 is not having any knowledge. The plaintiff instead of filing of the suit for specific performance filed this false suit against D1 with an intention to gain wrongful from the D1, the plaintiff filed this suit after long gap of 3 years after issuance of the notice and the plaintiff also failed to mention who restrained him from filing a suit in the year 2007. This defendant received only commission amount but not any sale consideration and the same was agreed and accepted by the 2nd defendant. In the presence of the 2nd defendant only the this received the amount and if any liability left it is only the defendant no2 but not this defendant. This present suit filed by the plaintiff with collusion of the 2nd defendant and the suit is liable to be dismissed. The plaintiff simply stating that he spent more than Rs. 10,000\ in connection with visiting of the plot in obtaining the title of the owner of the plot and other documents and it is the duty to obtain such things on his cost only and no body shall responsible for the said costs. The plaintiff mentioned the cause of action only against the 2nd defendant and this hon'ble court has no jurisdiction to entertain 5O.S.No.1904 of 2010 the suit in lieu of misjoinder of parties hence the suit is liable to be dismissed. The suit is liable to dismissed against the 1st defendant.
4. 2nd defendant filed written statement and the brief averments of written statement are as follows: This defendant is arrayed as 2nd defendant in the suit with all false and frivolous and untenable grounds. This defendant is an illiterate person and carrying waste paper business and during his business he got acquaintance with the 1st defendant and the 1st defendant lured him with a promise that either himself or his wife may be admitted into an already running chit which is going to be matured with in a short period in Suman chit fund company by that he can get back his invested amount within short period along with dividends plua matured amount and the 1st defendant has obtained the signatures of the 2nd defendant and his wife on white paper and assured that the particulars of chit and other required things would be filled up later by himself after ascertaining from the office of the chit fund company. When this defendant enquired about the chit membership the 1st defendant informed that the existing vacancy was filled up as and when membership vacancy arises infuture he will be inducted and the same may be informed accordingly. This defendant not peruse the matter any further.
After that this defendant received court summons. It is denied and it is false that the plaintiff come across with 1st defendant when he was trying to purchase a residential plot and the 1st defendant has shown the plot owned by this defendant at Raipole village Ibrhimpatnam Mandal Ranga Reddy district and had produced an authorization letter from this defendant by going through the contents of the authorization letter and original title deeds the plaintiff agreed to purchase the 6O.S.No.1904 of 2010 same and sale consideration was finalized at Rs. 3,20,000/ the plaintiff paid any amount of Rs. 50,000/ through cheque to 1st defendant and 1st defendant executed a receipt on the same day acknowledging the receipt of the amount and the wife of this defendant signed as witness to the said payment and the transaction took place and it is also denied that by looking into the contents of the authorization letter, the 1st defendant was authorized to negotiate and settle the sale transaction and received the money and accordingly the plaintiff has paid part of sale consideration. This defendant never issued any authorization letter to the 1st defendant to negotiate and receive any sale consideration of his plot. It is denied that the first defendant agreed to get the plot registered on 06.09.2007 by procuring the presence of the D2 and D1 failed to do so and D1 also failed to bring the D2 on 10.09.2007 for registration. This defendant did not receive the notice dt.30.11.2007.
This defendant is not aware about the false reply dt.27.12.2007 is not within the knowledge of this defendant. It is also denied for want of knowledge that D1 illegally retained the amount and enjoying the same and the plaintiff finding no alternative and got issued the telegraphic notice on 01.05.2010. The telegraphic notice dt.01.05.2010 was issued only to D1. There is no cause of action against D2.
It is denied that the plaintiff has spent more than Rs.10,000/ towards the expenses for the purchase of the plot. The plaintiff is not entitled to claim any amount from
D2. Hence the suit is liable to be dismissed.
5.Basing on the pleadings the following issues framed for consideration during trial:
1. Whether the plaintiff is entitled for recovery of suit amount as prayed for?
7O.S.No.1904 of 2010
2. Whether the suit is not maintainable due to misjoinder of parties?
3. To what relief?
6.On behalf of plaintiff PW1 examined Ex.A1 to A12 marked. On behalf of D1,
DW1 examined Ex.B1 marked. On behalf of the D2, DW2 & DW3 examined. No documentary evidence adduced. Written arguments of plaintiff filed. Heard D1 &
D2 and plaintiff.
Issue No.1&2: 1. Whether the plaintiff is entitled for recovery of suit amount as prayed for?
2. Whether the suit is not maintainable due to misjoinder of parties?
To avoid repetitions and for the sake of convenience, both issue NO.1&2 are discussed together. The main contention of the plaintiff is that the plaintiff approached the D1, who informed to the plaintiff that he was in the field of real estate business and D1 shown the plot belongs to D2 and plaintiff satisfied and prepared to purchase the plot and then D1 shown the authorization letter given by
D2 and basing on the authorization letter plaintiff paid Rs.50,000/ towards part of sale consideration out of total sale consideration of Rs.3,20,000/. D1 executed receipt on 30.08.2007 acknowledging the receipt of amount from the plaintiff and
D2's wife signed as a witness to the said receipt. D1 agreed to get it registered the plot by producing the presence of D2 before the Registrar, but D1 failed to bring the
D2 for registering the plot and finally the plaintiff got issued the legal notice on 30.11.2007 demanding the execution of sale deed and D2 received the same but failed to respond to the demand made by the plaintiff. D1 illegally retained the amount and failed to bring the D2 for registration of sale deed hence both D1 & D2 8O.S.No.1904 of 2010 both are liable to pay the amount with interest and costs.
7. D1 contended that D1 is the real estate broker by profession and used to take commission from both vendor and vendee when both interested to sell and purchase of immovable property. D2 is the owner of plot and asked D1 to arrange to sell the property and commission was fixed Rs.50,000/ and executed authorization letter on 30.08.2007 and plaintiff after satisfied with title deeds prepared to purchase the D2's plot and as per agreement Rs.50,000/ paid by plaintiff and theus the duty of D1 is over and it is the duty of the D2 to receive the amount and register the sale deed infavour of the plaintiff. If any dispute arose it is the duty of plaintiff and D2 to settle the terms amicably. D1 has no knowledge of the transaction between plaintiff and D2 and plaintiff and D2 colluded each other and filed false suit against D1. On the other hand, D2 contended that D2 is having acquaintance with D1 and D1 promised that either himself or his wife may be admitted into an already running chit which is going to be matured within a short period in Suman
Chit Fund Company by that he can get back his invested amount within short period along with dividends plus matured chit amount 1st defendant has obtained the signatures of his wife and himself on white paper and assured that the particulars of chit and other regular things would be filled up later by himself after obtaining from the office of the Chit Fund Company. When this defendant enquired about the membership D1 informed that the existing vacancy was filled up as and when membership vacancy arises in future he will be inducted and the same informed by D1. Thereafter D2 did not pursue the matter any further. This defendant denying all the averments of the plaint this defendants never authorized 9O.S.No.1904 of 2010
D1 for sale transaction and D2 has no knowledge of the transaction between D1 and plaintiff.
8.To substantiate the claim of the plaintiff, plaintiff examined as PW1. Ex.A1 to A12 got marked. On behalf of the D1 1st defendant examined as DW1 and Ex.B1 got marked. On behalf of the D2, D2 examined as DW2 and DW3 examined on behalf of D2.
9.The 2nd defendant is the absolute owner and possessor of the plot bearing
House No.JGL 63 admeasuring 240 sq.yards in Sy.No.488, Dream City II Sagar
Colony, Raipole Village, Rangareddy District. There is no dispute between the plaintiff with regard to the ownership of the 2nd defendant over the plot. The second defendant is also admitted that he is owner of the said property. The 1st defendant contended that he is a Real Estate broker by profession and D2 approached the defendant D1 and requested him to dispose off the said property with immediate effect as the D2 requires money for the urgent personal needs and executed authorization letter on 30.08.2007 infavour of D1 and authorized D1 to receive the amount of commission and as well as sale consideration. D2 on the other hand contended that D1 approached him and D1 approached him and D1 lured him with a promise that either D2 and his wife may be admitted into an already running chit which is going to be matured with in a short period in Suman Chit Fund Company by that D2 can get back his invested amount within a short period along with dividends plus and chit amount and D1 obtained the signatures of D2's wife and signature of D2 on white paper and assured that the particulars of chit and other required things would be filled up later at the time of inducting as a member of chit.
10O.S.No.1904 of 2010
After D2 made enquiries and that D1 informed that there is no vacancy, when membership vacancy arises in future he will be inducted D2 did not pursue the matter later.
10.D1 in his written statement specifically mentioned that he is real estate broker by profession and D2 approached and requested to dispose offf the said property as he is in urgent need of money. D2 contended that he had no interest to sell the property and he had never entered into any deliberation for selling his plot with the plaintiff or with the first defendant. DW2 (D2) in his cross examination of plaintiff admitted that “D1 also worked as agent in Janaharsha Real Estate Firm”.
The profession of D1 i.e., Real Estate broker is not denied by D2. D1 (DW1) in his cross examination stated that “ I am doing real estate business and I am a real estate broker by profession.” From the above admission, it is concluded that D1 is a real estate broker by profession. D2 contended that the D1 is an agent of Suman
Chits and D1 promised to D2, that D2 and his wife will be inducted as member in the Suman Chit Fund Company and obtained the signature of D2 and his wife on blank papers. D2 in support of his contention have not filed any documentary proof, but adduced oral evidence by examining DW3. DW2(D2) in his cross examination by D1 admitted that “I have not filed any documentary proof to show that D1 is the agent of Suman Chit Fund. I have not filed any documents to show that I have joined as a member in a chit conduced by the Suman Chit Funds. It is not true to suggest that D1 did not obtained any signature on blank paper. I have not lodged any complaint against D1 for obtaining the signatures of me on blank 11O.S.No.1904 of 2010 papers.” DW2 in his cross examination done by plaintiff clearly stated that “I cannot say the exact year when I joined as a member in chit transaction. I cannot say the exact year when I joined in chit transaction. I have not mentioned the fact that the D1 is the agent of Suman Chits in my written statement. It is true that I have not mentioned the value of the chit, the period of chit and other details of the chit either in my written statement or in my chief affidavit.” Though D2 contended that D1 obtained the signatures of D2 and his wife on blank paper and D1 promised that D2 or his wife may be admitted in the chit and obtained the signatures on blank paper, D2 have not filed any documentary proof in support of his contention.
D2 have not pursued the matter with D1, after signing on the blank paper. D2 have not got issued any legal notice and did not take any legal steps demanding the
D1 to return back the blank papers. D2 did not lodged any complaint against D1.
Even after filing of the suit D2 have not taken any steps against D1 for obtaining the signatures on blanks and fabricated those documents.
11.(D2) DW2 in support of his contention examined DW3. DW3 in his chief examination stated that D1 obtained the signature of D2 and his wife in the month of July, 2007 in his presence and D2 informed her that D1 will admit her in a chit transaction. Joining in a chit transaction, D2 informed her that whenever there exists any vacancy then D1 will be admitted. But during the cross examination of
DW3 by the plaintiff he categorically stated that “D1 never shown me any documents to show that he is the agent of Chit Fund Company. I do not know the number of pages signed by D2 and I do not know the number of pages which D1 12O.S.No.1904 of 2010 obtained the signature of D2. I do not know the house of D1 where he is residing. I do not know the filing of the present suit and I never met D1 after filing of the suit. I have not brought the election ID card and or ration card to show that I am the resident of Saleem Nagar Colony. It is false to say that I am not the resident of
Saleem Nagar Colony as such I have not filed the Election Identity Card and ration card. I do not know where the plot situated D2 never informed me about the authorization given to D1 in respect of plot. I have no idea about the date on which
D2 signed on paper. I cannot say the date.” DW3 in his cross examination done by
D1 categorically admitted that “the suit transaction took place in my presence. I have no idea in which year the transaction took place. I was not present at the time of discussion with regard to the plot which was took place between plaintiff and D1 & D2. I have seen D1 two years back. I met D1 at D2 house on occasion of Ayyappa
Pooja. After completion of Pooja all are left the place. It is true that the chit transaction was not took place on that day. I do not know when whit transaction took place. No signature took place before me by D1 from D2. It is true that D1 obtained the signatures of D2 and his wife before me on blank papers. After three days of execution of signatures D2 informed me that he and his wife signed on papers with regard to the chit transaction. I do not know whether D2 and his wife signed on blank papers or the printed forms.” the admissions of the DW3 in his cross examination establishes that DW3 is not aware in which year D1 obtained the signature of D2 and his wife, DW3 does not know whether D1 obtained the signatures of D2 and his wife on blank paper or printed papers and DW3 met D1 13O.S.No.1904 of 2010 only on the occasion of Ayyappa Pooja and it is not the day on which the signature of
D2 and his wife obtained by D1 and DW3 also admitted that chit transaction did not take place on that day.” The plaintiff denying the residence of DW3, but DW3 has not filed any documentary proof to show that DW3 is the resident of Saleem
Nagar Colony, Malakpet. DW3 at one time he stated that he do not know anything about the suit transaction and at one time he stated that the suit transaction took palce in his presence. There are contradictions in the deposition of DW3. Hence
DW3 evidence is not reliable. Moreover, DW2 (D2) either in his pleadings and chief examination did not mentioned about the presence of DW3 at the time of execution of blank paper. As such the evidence of DW2 cannot be taken into consideration.
Hence D2 failed to establish that D1 obtained the signature of D2 and his wife on blank papers and those blank papers fabricated for the purpose of sold of the plot.
12.Ex.A2 filed by the plaintiff. Ex.A2 head line shows that it is an authorization letter. D2 failed to establish that he has signed on blank paper with regard to the chit transaction. D2 not disputed his signatures on Ex.A2. Moreover, Ex.A2 shows that D2 authorized D1 to enter into agreement of sale of the property in favour of
K.Ramana Rao who is plaintiff herein. This writing is as under: “ I, Sri Kawali
Krishnaiah, S/o.K.Venkataiah, age 32 years, Occ: Private Service, R/o.H.No.1611 20/2/B/C, Saleem Nagar Colony, Malakpet, Hyderabad hereby authorized Sri
V.Naga Raju S/o.V.Venkaiah R/o.H.No.168503/1 Kaldeera Colony, New Malakpet,
Hyderabad – 24 to enter and execute sale agreement in favour of Sri K.Ramana Rao
S/o.K.Venkaiah R/o.Nallakunta, Hyderabad in respect of plot/unit No.JGL63 14O.S.No.1904 of 2010 (North Pat) measuring area 240 sq.yards or 200.67 sq.meters in J phase Sy.488
Deam City II (Saga Block) situated at Raipole Village, Ibrahimpatnam Mandal,
Ranga Reddy District under Grampanchayat of Raipole village under SRO
Ibrahimpatnam. I also further authorize Sri V.Naga Raju S/o.V.Venkaiah to receive a sum of Rs.3,20,000/ as full and final sale consideration of the above mentioned plto/unit on my behalf.” I confirm and ratify the amounts received and sale agreement and I shall execute the sale deed of the above plot whenever required/demanded by the party/vendee.”
13.On the strength of this writing i.e., Ex.A2, the D1 entered into an agreement with the plaintiff to sell the plot for a consideration of Rs.3,20,000/. Ex.A2 authorized the D1 by D2 to enter into the agreement of sale in respect of property with the plaintiff but D2 contending that he has no intention to sell the property.
But immediately in the next month of Ex.A2, D2 sold the property to one P.Subba
Raju, but not to the plaintiff. The same was admitted by the D2. Ex.B1 is the encumbrance certificate filed by the D1. Ex.B1 shows that D2 sold the property to one P.Subba Raju for Rs.3,60,000/ it shows that within 27 days of Ex.A2, D2 sold the property for higher price to third parties. Hence presumption drawn against D2 that he intended to sell the property and executed Ex.A2 infavour of D1. Ex.A1 is the receipt. Ex.A1 shows that D1 after receiving of the sale consideration executed
Ex.A1 in the presence of the D2's wife. D2 does not disputing the signature of his wife on Ex.A1. D1 is not disputing his signature on Ex.A1. D1 is not disputing the receiving of Rs.50,000/ from the plaintiff. D2 contended that D1 obtained the 15O.S.No.1904 of 2010 signature of his wife on the blank papers. But D2 failed to prove that D1 obtained the signature of D2 and his wife on the blank papers. Even after filing of the suit
D2 has not given any notice either to plaintiff nor to D1 stating that he is not at all concerned with signature on Ex.A2 and he is not aware about the signature of his wife on Ex.A1. D2 also have not taken any steps to adduce her wife as witness to prove that D1 obtained the signatures of his wife on blank papers. Hence the payment of Rs.50,000/ was very much within the knowledge of D2. Even for a moment it is presumed that D2's wife not signed as a witness on Ex.A1, D2 executed Ex.A2, authorizing the D1 to receive the sale consideration. Hence D2 is very much having knowledge of payment of Rs.50,000/ by plaintiff to D1. It is not the case of the D2, that his wife not informed to him about the execution of Ex.A1 and it is not the case of the D2 that his wife did not signed on Ex.A2. It is not the case of the D2 that he cancelled Ex.A2 prior to Ex.B1. Hence under Ex.A2, D2 authorized D1 to sell the property to the plaintiff and also authorized D1 to receive
Rs.3,20,000/ towards sale consideration and under Ex.A1, the D1 received
Rs.50,000/ from the plaintiff in the presence of the D2's wife.
14.D2 contended that there is no cause of action against D2 and in the plaint cause of action mentioned against D1. Hence D2 is not liable to pay the amount to the plaintiff. But in the plaint 6th page, 5th paragraph it was mentioned by the plaintiff that “that the above stated facts constitute cause of action to file the present.
First the cause of action arose on 30.08.2007 that when D1 received the amount from the plaintiff in pursuance of authorization letter executed by D2 and execute the receipt acknowledging the receipt of amount from the plaintiff. Further arose on 16O.S.No.1904 of 2010 01.05.2010 when plaintiff finally got issued the legal notice demanding the D1 to pay the suit amount. The cause of action arose on 30.11.2007, 27.12.2007 and 04.01.2008 as there was exchange of notices between the parties to the suit.” the cause of action mentioned against D2 also in the plaint by the plaintiff, as such the contention of
D2 is not tenable. From the above discussion, the court has no hesitation to say that D2 authorized D1 under Ex.A2 and on the basis of Ex.A2, D1 received
Rs.50,000/ from the plaintiff in the presence of the D2's wife and the said payment was within knowledge of the D2 also.
15. D2 contented that the legal notices given by the plaintiff are not served on the D2 and specially the telegram notice issued by the plaintiff that is on 0105 2009 is issued to D1 only hence suit is not maintainable. The plaintiff filed ExA.3 office copy of legal notice along with D2 return covers. The Ex.A.3 are issued to D.2 address, by mentioning that House.N0.161120/2/D/C Saleem nagar colony,
Malakpet, D2 notice returned unserved “no such person in this house” but D.2 mentioned the same address in the chief affidavit copy and on the same address the summons of D.2 served. Though D.2 contended that summon served by the plaintiff counsel not by the Court processor, no steps have taken by D.2 to prove his contentions. Ex.A.4 is the office copy of telegraphic notice dt.16122007 issued to both D.1 and D2. Ex.A.5 is the legal notice send under certificate of posting to defendants on 200122007 with return cover of D.2 by mentioning that insufficient address. The address mentioned in Ex.A.5 return cover is the same address mentioned by D.2 in his chief examination affidavit. Ex.A.6 is the reply notice got issued by the D.1. Ex.A.7 is the rejoinder issued by the plaintiff. Ex.A8 is the 17O.S.No.1904 of 2010 acknowledgment of rejoinder .Ex.A.9 is the office copy of rejoinder legal notice.
Ex.A.10 is the CC of telegraphic copies showing undelivered telegram dt:2801 2008. Ex.A.11 is the office copy of telegraphic notice. Though D.2 contented that
Ex.A.3 and Ex.A.4 are not served by endorsing that “no such person in that address” and “in sufficient address” the D.2 is residing in the same address to which Ex.A3 and A.4 send by the plaintiff. The D.2 is very much residing in the same address and it is the sufficient address. Hence, presumption drawn against
D2 that notices served on D2 before filing of the suit.
16. D1 contended that D1 is the real estate broker by profession and he used to take commission from both vendor and vendee and both interested to sell and purchase of immovable property. D2 who is owner of the property executed Ex.A2 and under Ex.A1, D1 received his commission in the presence of D2's wife and duty of the D1 is over and it is the duty of the D2 to receive remaining balance and to execute the sale in favour of the and if any dispute arose it is the duty of plaintiff and D2 to settle amicably and D1 is not liable to pay the amount. D2 contended that he never approached the D1 and requested to make arrangements for selling of the plot. But D2 (DW2) in his cross examination admitted D1 worked as an agent in Janaharsha Real Estate Firm. PW1 in his cross examination done by the D1 (cross examination on 07.12.2011) categorically admitted that “D1 informed me that he is the agent of selling of plots and informed me that he is the agent of
Janaharsha.” PW1 further says that “D1 informed me that the wife of D2 is his classmate and through him only D2 purchased the plot and now also D1 is making arrangements for the selling of the plot.” Ex.A12 is the encumbrance certificate of 18O.S.No.1904 of 2010 the property. Ex.A12 shows that D2 purchased the property Janaharsha Estate 'N'
Constructions Pvt.Ltd.,. D2 also admitted that D1 worked as an agent of
Janaharsha Real Estate. Hence presumption drawn that D2 might be purchased the plot from Janaharsha Estate through D1. Moverover, D2 cross examined the
DW1 and DW1 in his cross examination stated that “I arranged the negotiations between the plaintiff and D2 infront of the house of D2. I do not know whether the plaintiff and D2 entered into any agreement of sale or not. The above said
Rs.3,20,000/ includes my commission of Rs.50,000/. I shown the plot to the plaintiff two times, plaintiff bear the expenses of visiting plot. I have not given any amount to D2 out of Rs.50,000/ which I have received from the plaintiff It is not true to suggest that the sale transaction is not completed as such I am liable to pay
Rs.50,000/ which I have received from the plaintiff towards my commission.” D2 did not suggested in the entire cross examination that D2 never approached D1 and never asked for the arrangement to sell the plot. Hence, after gone through the cross examination, concluded that D2 approached D1 and requested for making the arrangements for the sell of the plot.
17.D1 contended that both D2 and plaintiff agreed to pay Rs.50,000/ towards the commission and he received Rs.50,000/ plaintiff towards the commission.
Ex.A2 executed by D2 and authorized D2 only to receive Rs.3,20,000/ towards full and final consideration. Ex.A1 also shows that he received the amount of
Rs.50,000/ towards part sale consideration amount out of the total sale consideration amount of Rs.3,20,000/. D1 did not filed any documentary evidence 19O.S.No.1904 of 2010 to show that both plaintiff and D2 agreed to pay Rs.50,000/ towards the commission D1 also failed to adduce the oral evidence in support of his contention that he received Rs.50,000/ not towards the part of sale consideration and towards the commission. Though the DW1 in his cross examination contended that Ex.A1 &
A2 brought by the plaintiff, no documentary and oral evidence adduced by the D1 in support of his contention. Though D1 may be illiterate, he is in real estate business since long time and D1 is having sufficient experience in the business. It is not believable version of D1 that D1 signed on Ex.A1 when plaintiff brought
Ex.A1, and D1 signed on Ex.A1 and without gone through the contents of Ex.A1.
Hence D1 received Rs.50,000/ only towards the part of the sale consideration not towards the commission.
18.D1 contended that plaintiff and D2 colluded each other and filed the false suit recovery of the amount from D1 and that is the reason plaintiff did not filed any suit for specific performance of contract against D2. But the plaintiff has option either to proceed with the for specific performance of contract and for cancellation of document or for recovery of amount paid by him and on the other hand, the D2 contended that D1 and plaintiff colluded each other and fabricated
Ex.A1 & A2 and filed this false suit both D1 & D2 have not adduced any documentary evidence and did not adduced any oral evidence in support of his contentions. Hence no hesitation to say there is no collusion by D1 with the plaintiff and there is no collusion of D2 with the plaintiff. The plaintiff contended that D.1 approached the plaintiff and informed that he was the real estate broker and shown the residential plot owned by D.2 and shown the E.x.A.2 and original 20O.S.No.1904 of 2010 title deeds and the sale transaction was finalized by fixing the sale consideration for
Rs.3,25,000/ and Rs.50,000/ paid through cheque to D.1 in the presence of the wife of the D.2 under Ex.A.1 the D.1 acknowledge the receiving of the amount and wife of
D.2 signed on Ex.A.1. PW1 in his cross examination categorically stated (D.1 cross examination on 07122011 stated that “D.1 called me through telephone. witness says that in Osmania University some people arranged the sale of plots and I have given the my cell number to them. D.1 might have taken the number from the people and contacted me. D.1 informed me that he is the agent of selling of plots, and also informed that he is the agent of Janaharsha. It is not true to suggest that I contacted the D.1 through phone and I requested the D.1 to arrange the plot to purchase. Prior to four days of execution of Ex.A.1. I met D.1 at his residence at
Malakpet. D.1 taken me to Ibrahimpatnam to show the plot on the same day.
Subsequently on the same day D.1 taken me to the D.2 house, at the insistence of my self. I discussed with D.1 about the price of the plot and terms and conditions of the
Agreement. There is no discussions about the payment of commission to D.1. I do not know the discussion which are taken place between D.1 and D.2 about the commission but no discussion taken place between me and D.1 about the commission. Witness says that D.1 informed me that the wife of D.2 his classmate, and through him only D.2 purchased the plot and now also D.1 is making arrangement for the selling of the plot. It is true that I have not mentioned in my plaint that D.1 informed me that D.1 and wife of D.2 are classmates and through him only D.2purchased the plot and making the 21O.S.No.1904 of 2010 arrangement to sell the same . Witness says that it is not necessary to mention the same hence not mentioned. On the same day D.2 and his wife present along with D.1 at the time of final discussion. On the same day D.2 informed that D.1 will take care of the transaction with regard to the plots etc. Basing on Ex.A.2 I have paid
Rs.50,000/ to D.1. I have paid the amount to D.1 why because there is an existence of Ex.A.2 and the wife of D.2 signed as a witness on Ex.A.1.It is not true to suggest that I have paid Rs.50,000/ as a commission to D.1 for sale transaction. D.1 promised me that he get it registration of plot by bringing the D.2 but he failed. It is not true to suggest that I have not mentioned either in the plaint or in my chief affidavit nor in Ex.A.3 that D.1 promised me that he get it registered within one week from 30 th August. On my instruction only Ex.A.3 got issued by my counsel. It is not mentioned in my legal notice that the transaction should be closed within one month.” No contra evidence adduced by D2 to show that plaintiff did not approached D1 for the purchase of plot and even the D2 did not cross examined D1 with regard to this aspect. From the cross examination of PW1 (done by D1) it is established that PW1 approached D1 for the purchase of plot. D2 also in his cross examination admitted that “plaintiff never came to my house prior to 30.08.2007. It is not true to suggest that plaintiff came to our house and same was deposed by the plaintiff before the court.” It means on 30.08.2007 plaintiff visited the house of D2 .
Hence, plaintiff visited the house of D2 to purchase the plot.
19.From the above discussions it is concluded that the plaintiff approached D1 for the purchase of plot and D1 shown the plot of D2 and also shown Ex.A2 22O.S.No.1904 of 2010 authorization and basing on Ex.A2 the plaintiff paid Rs.50,000/ to D1 towards the part of sale consideration out of total consideration of Rs.3,20,000/ in the presence of D2's wife and Ex.A1 receipt signed by D1 and D's wife signed as witness. But D2 in Ex.A2 agreed that he will execute the sale deed infavour of the plaintiff but failed to execute the sale deed infavour of D2 and D1 received Rs.50,000/ towards part of sale consideration in the presence of the D2's wife and failed to establish that it is received towards the commission and failed to got execution of sale deed infavour of plaintiff. Both D1 & D2 having the knowledge of payment of Rs.50,000/ and it is for the part of sale consideration out of the total consideration of
Rs.3,20,000/. D1 received the money and enjoyed the money as an authorized agent of D2 and D2 executed the authorization letter in favour of D1 covered under
Ex.A2 to receive the money from the plaintiff towards part sale consideration to finalize the sale transaction as agent. D2 sold the property to one third part for
Rs.3,60,000/ for higher price without executing the sale deed in favour of the plaintiff. Hence both D1 & D2 are liable to repay the amount to the plaintiff.
20.Section 70 of Indian Contract Act deals with the obligation of person enjoying benefit of nonguarantors Act: Where a person lawfully does anything for another person, or delivers anything to hair non intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect or to restore the things so done or delivered.
Hence D1 without done anything received Rs.50,000/ hence he is liable to pay the amount under the doctrine of urjust enrichment.
21.The plaintiff contended that under Section 73 to 75 of Indian Contract Act, 23O.S.No.1904 of 2010
D1 & D2 are liable to pay damages. Section 73 of Indian Contract Act says
Compensation for a loss or damage caused by breach of Contract: When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew when they made the contract, to be likely to result from the breach of it. Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Compensation for failure to discharge obligation resembling those created be contract When an obligation resembling those created by contract has to discharge it is entitled to receive the same compensation from the party in default, as if such person had constructed to discharge it and had broken his contract – Explanation In estimating the loss or damage arising from a breach of contract, the means which existed or remedying the inconvenience caused by the nonperformance of the contract must be taken into account.” Section 75 of the Indian Contract Act 1872 says even though the plaintiff rescinded the contract to purchase the property as per contention of the defendant No.1 but still he is entitled to claim the compensation. Section 75 of Indian Contract Act reads as : “Party rightfully rescinding contract entitled to compensation – A person who rightfully rescinds a contract is entitled to compensations for any damage which he has sustained through the nonfulfillment of the contract.
22.As per Section 73 and 75 of Contract Act, the plaintiff is entitled for the compensation as he rightfully rescinds the contract. But the plaintiff claiming only 24O.S.No.1904 of 2010 the interest @ 24% P.A on principal amount of Rs.50,000/ from 30.08.2009 to 04.05.2010 and the plaintiff has spent the amount, an amount of Rs.10,000/ for the purchase of the plot. Hence the amount claimed by plaintiff towards the interest and miscellaneous is reasonable and both D1 and D2 are liable to pay the suit amount. Both D1 and D2 jointly and severally liable to pay the suit amount and it is not amount to misjoinder of parties to the suit. Both D1 & D2 are the proper and necessary parties to the suit and both D1 & D2 jointly liable for payment of suit amount. From the above discussions issue NO.1&2 answered infavour of the plaintiff and against D1 & D2.
Issue No.3: To what relief?
In view of my findings in issue NO.1&2, the suit deserves to be decreed with costs.
In the result, the suit is decreed for Rs.94,000/ with costs against D1 & D2 jointly and severally together with interest @ 12% P.A from the date of suit till the date of decree and thereafter @ 6% P.A from the date of decree till the date of realization on Rs.50,000/.
Typed to my dictation by the personal assistant, corrected and pronounced by me in the open court on this the 23rdday of April, 2012.
XIX Junior Civil Judge, City Civil Court:Hyderabad
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:For Defendants: P.W.1 :K.Ramana RaoDW1: V.Nagaraju DW2: K.Krishnaiah 25O.S.No.1904 of 2010
DW3: Shaik Mahaboob
EXHIBITS MARKED
For Plaintiff: Ex.A1:Original receipt dt.30.08.2007 executed by D1 Ex.A2: Original authorization letter dt.30.08.2007 Ex.A3: Office copy of legal notice dt.30.11.2007 Ex.A4: Office copy of telegraphic legal notice dt.16.12.2007 Ex.A5: Legal notice sent through UCP to defendants dt.20.12.2007 with returned cover of D2. Ex.A6: Original reply legal notice dt.27.12.2007 Ex.A7: Office copy of rejoinder legal notice dt.04.01.2008 Ex.A8: Acknowledgement of rejoinder legal notice dt.08.01.2008 with 2 returned covers of D2 Ex.A9: Office copy of rejoinder legal notice issued by plaintiff to D2 dt.04.01.2008 by RPAD, along with 2 acknowledgement cards. Ex.A10: Certified copy of telegraphic office showing undelivered telegram dt.28.01.2008 Ex.A11: Office copy of telegraphic legal notice dt.01.05.2010 Ex.A12: Certified copy of encumbrance certificate along with its receipt dt.31.08.2007.
For Defendants: Ex.B1: Certificate of Encumbrance on property issued by Govt.of A.P. Registration and Stamps Department.
XIX Junior Civil Judge, City Civil Court:Hyderabad