- 1 - RFA No. 906 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JUNE, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE T.M.NADAF REGULAR FIRST APPEAL NO. 906 OF 2018 (SP) BETWEEN: 1. SRI VILANGAT XAVIER JOSE SON OF SRI V M XAVIER AGED 52 YEARS NO.37/4008, 1ST FLOOR AZAD BUILDING, AZAD ROAD KALOOR , KOCHIN-682017 PRESENTLY RESIDING AT: VILANGAT-VXJC HOUSE NO.44/1656 B(1) VYLOPPILLY KRISHNA MENON ROAD (VKM ROAD), NEAR KALOOR JN KALOOR, KOCHI-682017 …APPELLANT (BY SRI V LAKSHMINARAYANA, SENIOR ADVOCATE A/W SRI S. ISMAIL ZABIULLA, ADVOCATE FOR SRI CHAND PASHA, ADVOCATE) AND: 1. SRI SYED ANWAR S/O LATE SYED BHASHA SAHEB AGED ABOUT 75 YEARS BELLAHALLI VILLAGE YELAHANKA HOBLI BENGALURU NORTH TALUK PIN CODE-560064 Digitally signed by VASANTHA KUMARY B K Location: HIGH COURT OF KARNATAKA - 2 - RFA No. 906 of 2018 2. SRI SYED AKRAM SON OF LATE SYED BHASHA SAHEB AGED ABOUT 73 YEARS BELLAHALLI VILLAGE YELAHANKA HOBLI BENGALURU NORTH TALUK PIN CODE-560064 3. 3(a) SRI SYED ANSARS SON OF LATE SYED BHASHA SAHEB SINCE DEAD REPRESENTED BY LRS SMT. BALQUIS BEGUM MAJOR W/O LATE SYED ANSAR NO.87, 1ST FLOOR SHIVAJI ROAD BENGALURU-560051 3(b) SMT. SHOGHU FULTIA BAHAR D/O LATE SYED ANSAR AGED ABOUT 36 YEARS NO.87, 1ST FLOOR SHIVAJI ROAD BENGALURU-560051 4. 4(a) SRI SYED ASHRAF SINCE DEAD REPRESENTED BY LRS FAZAL BEGUM AGED ABOUT 58 YEARS W/O LATE SYED ASHRAF NO.412, PILLANNA GARDEN 3RD STAGE, 2ND MAIN, 7TH CROSS BENGALURU-560045 4(b) MISS. AYESHA D/O LATE SYED ASHRAF AGED ABOUT 27 YEARS NO.412, PILLANNA GARDEN 3RD STAGE, 2ND MAIN, 7TH CROSS BENGALURU-560045 - 3 - RFA No. 906 of 2018 4(c) MISS. NUSARATH BANU D/O LATE SYED ASHRAF AGED ABOUT 25 YEARS NO.412, PILLANNA GARDEN 3RD STAGE, 2ND MAIN, 7TH CROSS BENGALURU-560045 4(d) MISS. SUMAIYA D/O LATE SYED ASHRAF AGED ABOUT 23 YEARS NO.412, PILLANNA GARDEN 3RD STAGE, 2ND MAIN, 7TH CROSS BENGALURU-560045 5. SRI SYED ASHTAR SON OF LATE SYED BASHA SAHEB AGED ABOUT 58 YEARS BELLAHALLI VILLAGE YELAHANKA HOBLI BENGALURU NORTH TALUK 6. SRI SYED QHAMAR SON OF LATE SYED BHASHA SAHEB AGED ABOUT 53 YEARS BELLAHALLI VILLAGE YELAHANKA HOBLI BENGALURU NORTH TALUK 7. SRI MUHAMMED MUNEER SAIT SON OF LATE A. ISMAIL SAIT AGED ABOUT 48 YEARS R/AT NO.777/B, 100 FT. ROAD INDIRANAGAR BENGALURU-560008 ALSO AT: "TREE LAND", NO.675 1ST STAGE, 3RD BLOCK, 6TH MAIN 8TH CROSS, HBR LAYOUT BRINDAVAN NAGAR BENGALURU-560084 PERMANENT RESIDENT OF NO.49/1876 'SULEKHA MANOR', ELAMAKKARA ROAD EDAPALLY, COCHIN-682024 - 4 - RFA No. 906 of 2018 8. SRI M VIJAY KUMAR SON OF LATE SRI NARAYANAPPA AGED ABOUT 52 YEARS R/O NAGAVARA VILLAGE ARABIC COLLEGE ROAD BENGALURU-560045 9. SRI KHALEELULLA SON OF ABDUL MUNAZ AGED ABOUT 60 YEARS R/AT NO.630, 1ST CROSS R.K. HEGDE NAGAR ARABIC COLLEGE ROAD BENGALURU-560045 10. 10(a) SRI A. ISMAIL SAIT SINCE DECEASED REPRESENTED BY SMT. HAMEED ISMAIL W/O LATE A. ISMAIL SAIT AGED ABOUT 66 YEARS R/AT NO.49/1876 'SULEKHA MANOR' ELAMAKKARA ROAD EDAPALLY, COCHIN-682024 10(b) SRI MOHAMMED ELIAS ISMAIL S/O LATE A. ISMAIL SAIT AGED ABOUT 50 YEARS R/AT NO.49/1876 'SULEKHA MANOR' ELAMAKKARA ROAD EDAPALLY, COCHIN-682024 10(c) SRI ALTHAF ISMAIL S/O LATE A. ISMAIL SAIT AGED ABOUT 49 YEARS R/AT NO.49/1876, 'SULEKHA MANOR' ELAMAKKARA ROAD, EDAPALLY COCHIN-682024 10(d) SRI MUHAMMED MUNEER S/O LATE A. ISMAIL SAIT - 5 - RFA No. 906 of 2018 AGED ABOUT 48 YEARS R/AT NO.49/1876 'SULEKHA MANOR' ELAMAKKARA ROAD EDAPALLY COCHIN-682024 10(e) SRI IMTHIAZ ISMAIL S/O LATE A. ISMAIL SAIT AGED ABOUT 46 YEARS R/AT NO.49/1876 'SULEKHA MANOR' ELAMAKKARA ROAD EDAPALLY COCHIN-682024 10(f) SMT. NAUSHEEN RAFEEK D/O LATE A. ISMAIL SAIT AGED ABOUT 43 YEARS R/AT NO.49/1876 'SULEKHA MANOR' ELAMAKKARA ROAD EDAPALLY COCHIN-682024 …RESPONDENTS (BY SRI R. SUBRAMANYA, ADVOCATE FOR R-10(a-f); R-3(b), R-4(a), R-4(b), R-4(d) & R-9 ARE SERVED AND UNREPRESENTED; SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI G.V. SUDHAKAR, ADVOCATE FOR THE IMPLEADING APPLICANT IN I.A.NO.2/2025; SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI VINAYAK B, ADVOCATE FOR R-7) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.02.2018 PASSED IN O.S.NO.2291/2006 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.04.2026, COMING ON FOR - 6 - RFA No. 906 of 2018 PRONOUNCEMENT THIS DAY, HON'BLE MR. JUSTICE D K SINGH PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF CAV JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) I PREFACE: 1. The present Regular First Appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 against the judgment and decree dated 16.02.2018 passed in O.S.No.2291/2006 by the 1st Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru. 2. The appellant/plaintiff has filed the aforesaid suit against the defendants for the relief of specific performance of the terms of the agreement of sale dated 12.01.2005 with a direction to the defendant Nos.1 to 10 to execute the registered sale deed in respect of the suit 'B' schedule property and also to deliver possession of the said property in his favour and in the alternative, for award of damages to the tune of Rs.60,77,750/- and for refund of advance sale consideration of Rs.25,00,000/- with interest @24% p.a. from the date of the suit till complete realisation. - 7 - RFA No. 906 of 2018 3. The Trial Court has allowed the suit in part and held that the plaintiff would be entitled to recover from the defendant Nos.1 to 6, the advance sale consideration of Rs.25,00,000/- with interest at the simple rate of 12% p.a. from the date of the agreement of sale i.e. 12.01.2005 till realization and the defendant Nos.1 to 6 have been held to be jointly and severally liable to pay the aforesaid amount to the plaintiff. The Trial Court, however, has rejected the claim of the plaintiff for specific performance of the terms of the sale agreement dated 12.01.2005 and for the alternative relief of liquidated damages. 4. The parties are referred to as per their ranking before the Trial Court, for the sake of convenience. II. FACTS: 5. The plaintiff claims to be a Chartered Accountant and also has some land holdings. The aggregate income of the plaintiff's family was below Rs.2,00,000/- per year on an average for the preceding 5 years from the year 2005. The plaintiff and the defendant No.7, with an intention to purchase agricultural lands near Yelahanka, Bengaluru, have approached the defendant Nos.1 to 6, who represented that they were the absolute owners of the suit 'A' schedule property bearing Survey No.52 - 8 - RFA No. 906 of 2018 measuring 8 acres 2 guntas situated at Bellahally Village of Bengaluru North Taluk. The negotiations to purchase the said land by the plaintiff and the defendant No.7 from the defendant Nos.1 to 6 took place in the presence of the defendant Nos.8 and 9. After negotiation, the agreement of sale dated 12.01.2005 was executed by the defendant Nos.1 to 6 in favour of the plaintiff and the defendant No.7 agreeing to sell the suit 'A' schedule property jointly in favour of the plaintiff and the defendant No.7 for a lawful consideration of Rs.15,10,000/- per acre amounting to Rs.1,26,84,000/-. The defendant Nos.1 to 6 had also acknowledged receipt of Rs.50,00,000/- towards part payment of the sale consideration. 6. Under the sale agreement, the period for performance of the contract was fixed at 5 months. The defendant Nos.1 to 6 had agreed to make good the marketable title over the suit 'A' schedule property by that time. It was agreed between the parties that if the defendant Nos.1 to 6 fail to execute the sale deed in favour of the plaintiff and the defendant No.7, then the prospective purchasers would be entitled to sue for specific performance of the terms of the sale agreement or at their option, they could rescind the sale agreement and after such - 9 - RFA No. 906 of 2018 recession, the defendant Nos.1 to 6 should return the advance sale consideration received with thrice the said amount as liquidated damages with interest @12% p.a. 7. It was further agreed between the parties that if the plaintiff and the defendant No.7 fail to pay the balance amount and get the sale deed registered in their favour in spite of compliance of the terms of the sale agreement by the vendors within the stipulated period, then the area proportionate to the amount paid by the prospective purchasers should be given to them and the vendors would be at liberty to sell the remaining area of the suit 'A' schedule property to whomsoever after issuing notice of termination of the agreement to the prospective purchasers. 8. It was further stated that the defendant Nos.1 to 6 had executed a General Power of Attorney (GPA) in favour of the plaintiff and the defendant No.7. On 12.01.2025, the plaintiff and the defendant No.7 had entered into a Memorandum of Understanding (MOU), wherein the plaintiff and the defendant No.7 had paid advance sale consideration of Rs.50,00,000/- in equal proportion and agreed to purchase the suit 'A' schedule property in their personal names in equal proportion and in - 10 - RFA No. 906 of 2018 case if there was any difficulty for any of the parties to bring the full amount, the property equivalent to the amount so contributed by the respective parties would be purchased as agreed with the vendors under the sale agreement. 9. It was stated that after entering into the agreement of sale with the defendant Nos.1 to 6, the plaintiff had ever been ready and willing to perform his part of the obligation under the sale agreement in paying the balance sale consideration and registering the suit 'A' schedule property to the extent of 4 acres 1 gunta i.e., the suit 'B' schedule property out of the total extent of 8 acres 2 guntas since the remaining extent was intended to be purchased by the defendant No.7. The plaintiff had requested the defendant Nos.1 to 6 to execute the sale deed in respect of the suit 'B' schedule property at the earliest, however, the defendant Nos.1 to 6 had postponed the execution of the sale deed. By that time, the defendant No.7, in collusion with the defendant Nos.1 to 6, 8 and 9, had started acting in a manner prejudicial to the interest of the plaintiff. 10. The plaintiff got issued a legal notice dated 07.06.2005 to the defendant Nos.1 to 9 calling upon the defendant Nos.1 to 6 to perform their part of the contract. The defendants did not - 11 - RFA No. 906 of 2018 issue any reply and with an intention to avoid performance of the contract, they had issued a legal notice dated 15.06.2005 revoking the GPA dated 12.01.2005 executed by them in favour of the plaintiff and the defendant No.7 alleging that the plaintiff and the defendant No.7 were acting detrimental to their interest. III THE CASE OF THE PLAINTIFF: 11. The plaintiff's case was that since he had contributed 50% towards advance sale consideration, he would be entitled to get the sale deed executed in respect of one half of the suit 'A' schedule property i.e., 4 acres 1 gunta (suit 'B' schedule property). It was further stated that the defendant Nos.1 to 6, in collusion with the defendant Nos.7 to 9, had alienated the suit 'A' schedule property in favour of the defendant No.10, who was none other than the father of the defendant No.7, for a sale consideration of Rs.60,37,500/- by executing a registered sale deed dated 09.09.2005. The defendant Nos.7 and 8 had acted as consenting witnesses to the said sale deed executed by the defendant Nos.1 to 6 in favour of the defendant No.10. It was stated that the defendant Nos.1 to 6, in collusion with the defendant Nos.7 to 10, had breached the - 12 - RFA No. 906 of 2018 contract. The plaintiff had invested Rs.25,00,000/- as advance sale consideration and had incurred incidental expenses too towards brokerage to the real estate agent. The plaintiff had also made an advance for digging of borewell in the land in question and totally, he had spent around Rs.40,00,000/- by borrowing loans. The plaintiff, therefore, had sought for a decree of specific performance of the terms of the sale agreement dated 12.01.2005 with a direction to the defendant Nos.1 to 6 and 10 to execute the sale deed in respect of the suit 'B' schedule property and also to handover possession of the said property in his favour. In the alternative, the prayer was made for awarding damages to the tune of Rs.60,77,750/- and also to refund the advance sale consideration of Rs.25,00,000/- with interest @24% from the date of the suit till complete realization. IV THE CASE OF THE DEFENDANTS: 12. The defendants contested the suit and denied the averments made in the plaint. The defendant No.2 had stated that his signatures were obtained on the alleged sale agreement and the GPA without explaining the contents of the said documents and therefore, the said documents were not - 13 - RFA No. 906 of 2018 binding on him. He further stated that the transaction between the defendant Nos.1 to 6 and defendant No.10 was a fraudulent transaction and the same was not finding on him. In fact, there was a dispute between the plaintiff and the defendant No.7 and without resolving the said dispute, the plaintiff had filed the suit. The damages as claimed by the plaintiff would be payable by the defendant No.7 as he had played fraud upon the plaintiff as well as on the defendant Nos.1 to 6. Therefore, the defendant No.2 had sought for dismissal of the suit with exemplary costs. 13. The defendant Nos.1 and 3 to 6 had admitted the execution of the sale agreement and the GPA dated 12.01.2005 and also receipt of the advance sale consideration of Rs.50,00,000/- from the plaintiff and the defendant No.7. However, they had denied all other material allegations made in the plaint more particularly, the allegation regarding readiness and willingness of the plaintiff to perform his part of the obligation under the sale agreement and also denied the entitlement of the plaintiff either for the relief of specific performance of the contract or for the alternative relief of - 14 - RFA No. 906 of 2018 liquidated damages and refund of advance amount with interest. 14. It was further contended by the defendant Nos.1 and 3 to 6 that the suit 'A' schedule property originally belonged to one Syed Basha Sab, who died on 05.12.1991 and the defendant Nos.1 to 6, being the legal heirs of the deceased Syed Basha Sab, had succeeded to the said property. Thereafter, on 01.06.2004, the defendant Nos.1 to 6 had entered into an agreement of sale (first sale agreement) with the defendant No.8 to sell the suit 'A' schedule property for a valuable consideration. Under the agreement dated 01.06.2004, a right was given to the defendant No.8 to nominate the person to purchase the suit 'A' schedule property and accordingly, by investing with such power of nomination, the defendant No.8 agreed to assign all his rights under the sale agreement dated 01.06.2004 in favour of the plaintiff and the defendant No.7 for a lawful consideration. Pursuant to the same, the plaintiff along with the defendant No.7 had entered into the agreement of sale dated 12.01.2005 (second sale agreement) with the defendant Nos.1 to 6, with the defendant Nos.8 and 9 being the confirming parties. - 15 - RFA No. 906 of 2018 15. It was further contended by the defendant Nos.1 and 3 to 6 that on the date of the sale agreement dated 12.01.2005 itself, the plaintiff and the defendant No.7 also entered into an agreement (third sale agreement) with the defendant No.8 by agreeing to pay a sum of Rs.1,11,89,500/- jointly in favour of the defendant No.8 and accordingly, the plaintiff and the defendant No.7 had issued cheques in favour of the defendant No.8 towards payment of the said sum of Rs.1,11,89,500/-. 16. It was further contended by the defendants Nos.1 and 3 to 6 that as agreed by the parties under the third agreement, the right of the defendant No.8 under the first agreement dated 01.06.2004 would stand cancelled only on realization of the cheque amount and therefore, the validity of the second agreement dated 12.01.2005 was subject to the payment to be made under the third sale agreement dated 12.01.2005 as, for the first agreement dated 01.06.2004 to be cancelled, the cheques issued under the third agreement had to be honoured and the amount therein had to be realised by the defendant No.8. The plaintiff had failed to comply with the terms of the third agreement as the cheques issued by him in favour of the defendant No.8 under the third agreement were all dishonoured - 16 - RFA No. 906 of 2018 and therefore, the second sale agreement dated 12.01.2005 became unenforceable and invalid as the first sale agreement dated 01.06.2004 was not cancelled. 17. It was further contended by the defendant Nos.1 and 3 to 6 that the plaintiff had no intention to pay any amount to the defendant Nos.1 to 6 or to the defendant No.8 and honoring the agreement. It was clear from the fact that the plaintiff got issued a legal notice dated 07.06.2005 to the defendant Nos.1 to 6 asking them to produce certain documents with the condition that in the event of non-production of the said documents, he would invoke Clause-7 of the second agreement which mentioned recession of the agreement and payment of liquidated damages. The plaintiff's readiness and willingness was denied. It was stated that the plaintiff had no right to seek performance of the contract in respect of the suit 'B' schedule property without there being any contract between the parties in that regard. It was further contended that as the plaintiff had expressed his intention to claim liquidated damages without pressing for specific performance of the contract, the defendant Nos.1 to 6 got issued a legal notice by revoking the GPA executed in favour of the plaintiff and the defendant No.7 and - 17 - RFA No. 906 of 2018 thereafter, alienated the suit 'A' schedule property in favour of the father of the defendant No.7 i.e., the defendant No.10, who was interested in purchasing the said property and was able to negotiate with the defendant No.8 regarding assignment of the interest of the defendant No.8 under the first sale agreement dated 01.06.2004. 18. It was further contended by the defendant Nos.1 and 3 to 6 that the plaintiff was not entitled for the relief of specific performance of the contract and also for the alternate relief of refund of the advance amount with interest and damages, as the defendant Nos.1 to 6 had already repaid the advance sale consideration amount in favour of the defendant No.7 under the MOU dated 08.09.2005 and therefore, if at all the plaintiff was entitled to receive any amount, it was only from the defendant No.7 and not from the defendant Nos.1 to 6. For all these reasons, the defendant Nos.1 and 3 to 6 have sought for dismissal of the suit with exemplary costs. 19. In the written statement filed by the defendant Nos.7 and 10, they had denied each and every allegations made in the plaint more particularly, the allegation regarding execution of the MOU between the plaintiff and the defendant No.7 and also - 18 - RFA No. 906 of 2018 the allegation that the plaintiff had ever been ready and willing to perform his part of the obligation under the sale agreement dated 12.01.2005. It was further contended by the defendant Nos.7 and 10 that the plaintiff had been the Auditor of the company owned by the defendant No.7, who was the son of the defendant No.10 and that the defendant No.7 was looking to purchase an appropriate land for and on behalf of his father i.e., the defendant No.10. The plaintiff evinced interest in joining him in such purchase and thereafter, the plaintiff and the defendant No.7 identified the suit 'A' schedule property that belonged to the defendant Nos.1 to 6 and then realised that the defendant Nos.1 to 6 had already contracted to sell the said property in favour of the defendant No.8 and also parted with possession of the property in favour of the defendant No.8 by executing a sale agreement dated 01.06.2004. It was further stated that the plaintiff and the defendant No.7 have entered into a sale agreement dated 12.01.2005 with the defendant Nos.1 to 6 for the purchase of suit 'A' schedule property and the defendant No.8 had affixed his signature to the said sale agreement as consenting party and thereafter, on the very same date, the plaintiff and the defendant No.7 had entered into a MOU with the defendant No.8 so as to secure release of - 19 - RFA No. 906 of 2018 the rights of the defendant No.8 in respect of the suit 'A' schedule property emerging out of a first sale agreement dated 01.06.2004. 20. 20. It was contended by the defendant Nos.7 and 10 that as a consideration for the release of the rights of the defendant No.8 under the sale agreement dated 01.06.2004, the plaintiff and the defendant No.7 had agreed to pay a sum of Rs.1,11,89,500/- jointly in favour of the defendant No.8 and in this regard, the plaintiff and the defendant No.7 had issued 5 cheques each for an amount of Rs.1,11,89,500/- and all the said cheques were dated 12.06.2005, which was the last day within which the plaintiff and the defendant No.7 were required to pay the balance sale consideration to the defendant Nos.1 to 6 and secure the sale deed in respect of the suit 'A' schedule property in terms of the sale agreement dated 12.01.2005. 21. It was further contended that as per the MOU dated 12.01.2005, the rights of the defendant No.8 under the sale agreement dated 01.06.2004 could have got cancelled only upon realisation of the cheques issued by the plaintiff and the defendant No.7 and therefore, the validity of the sale agreement dated 12.01.2005 entered into between the plaintiff - 20 - RFA No. 906 of 2018 and the defendant No.7 on one hand and the defendant Nos.1 to 6 on the other hand was entirely subject to cancellation of the sale agreement dated 01.06.2004 and as such, the performance of the terms of the said MOU dated 12.01.2005 between the plaintiff and the defendant No.7 on the one hand and the defendant No.8 on the other hand was axiomatic for the validity of the sale agreement dated 12.01.2005. It was contended that though the defendant No.7 had paid an amount of Rs.20,00,000/- to the defendant No.8 on 28.03.2005 and got back some cheques issued under the MOU, the plaintiff had failed to pay any amount to the defendant No.8 and when the pressure from the landowners and the defendant No.8 began to mount, the plaintiff sent words through his counsel that the defendant Nos.7 and 10 should buy out his rights under the sale agreement dated 12.01.2005 for a consideration of Rs.1,00,00,000/-. For that, the defendant Nos.7 and 10 had expressed their inability to pay such a huge consideration. 22. It was further stated by the defendant Nos.7 and 10 that the sale agreement dated 12.01.2005 stood rescinded and therefore, the plaintiff claimed three times of the advance paid to the defendant Nos.1 to 6 with further interest @ 12% p.a. in - 21 - RFA No. 906 of 2018 terms of Clause-7 of the sale agreement dated 12.01.2005. It was contended that since the plaintiff had failed to perform his part of the contract and since the defendant Nos.1 to 6 had refused to bifurcate the agreement and to sell a portion of the property to the defendant No.7, the defendant No.7, in consultation with the plaintiff's counsel viz., Sri M.A. Sebastian, had organized a meeting on 12.06.2005 to resolve the dispute and despite the assurance by his counsel, the plaintiff had failed to attend the said meeting on the premise that he was not interested in going ahead with the said transaction. 23. It was the case of the defendant Nos.7 and 10 that they had spent around Rs.2,00,00,000/- towards acquiring the suit 'A' schedule property. They further contended that the suit itself was not maintainable as there was no contact between the parties to sell the northern half portion of the suit 'A' schedule property i.e. suit 'B' schedule property which was abutting the road. In view thereof, they prayed for dismissal of the suit. V. ISSUES FRAMED BY THE TRIAL COURT: 24. On the basis of the pleadings, the Trial Court framed the following issues: - 22 - RFA No. 906 of 2018 "1. Whether the plaintiff proves that the defendants No.1 to 6 have entered into an agreement of sale dt:12/01/05, agreeing to sell the plaint 'A' schedule property in favour of the plaintiff and defendant No.7 for a sale consideration of Rs.15,10,000/- per acre, which works out to Rs.1,21,55,500/-? 2. Whether the plaintiff proves that in the agreement dt:12/01/05, the defendants 1 to 6 have acknowledged the receipt of total advance amount of Rs.50 lakhs? 3. Whether the plaintiff proves that he was ever ready and willing to perform his part of the contract? 4. Whether the plaintiff proves that during the subsistence of agreement dt:12/01/05, the defendants 1 to 6 in collusion & connivance with defendants 7 to 9 have sold the plaint 'A' schedule property in favour of 10th defendant under the registered sale deed dt:09/09/05? 5. Whether the plaintiff is entitled for the relief of part performance of the contract? - 23 - RFA No. 906 of 2018 6. In the alternative, whether the plaintiff is entitled for sum of Rs.60,77,750/- towards damages and refund of advance amount of Rs.25 lakhs together with interest @24% p.a.? 7. What Decree or Order?" 25. On examination of the oral and documentary evidence on record, the Trial Court decided issue Nos.1 and 2 in affirmative, issue Nos.3, 4 and 5 in negative and issue No.6 partly in affirmative. VI FINDINGS OF THE TRIAL COURT: 26. The Trial Court held that the plaintiff had convincingly proved that the defendant Nos.1 to 6 had executed the sale agreement dated 12.01.2005 by agreeing to sell the suit 'A' schedule property in favour of himself and the defendant No.7 for a lawful consideration of Rs.15,10,000/- per acre and the advance payment of part of sale consideration of Rs.50,00,000/- was paid by the plaintiff and the defendant No.7 under the sale agreement dated 12.01.2005. 27. So far as the plaintiff's contention that he was ever ready and willing to perform his part of the obligation under the sale - 24 - RFA No. 906 of 2018 agreement dated 12.01.2005, the Trial Court held that the existence of the prior sale agreement dated 01.06.2004 entered into between the defendant Nos.1 to 6 and the defendant No.8 was not in dispute. The cancellation of the sale agreement dated 01.06.2004 and the enforceability of the agreement of sale dated 12.01.2005 (Ex.P.3) would depend upon fulfillment of the obligation fixed under Ex.D.31-MOU dated 12.01.2005 by the plaintiff and the defendant No.7 and that was the ground dispute involved in the suit. There was no dispute regarding payment of Rs.50,00,000/- as part of the sale consideration in the ratio of 50:50 i.e., Rs.25,00,000/- each by the plaintiff and the defendant No.7. However, the plaintiff's readiness and willingness for making payment of the balance consideration could not be established as, for the financial year 2004-2005, the sum total of the professional income, agricultural income and income from other sources of the plaintiff's family was only Rs.2,78,657/- and it would not be possible to conclude that the plaintiff was ready with his part of contribution towards balance consideration which would be about Rs.35,00,000/- as on the date fixed under Ex.P.3-sale agreement for performance of the contract. - 25 - RFA No. 906 of 2018 28. So far as the letter dated 25.05.2005 (Ex.P.27) addressed by the plaintiff's father-in-law expressing his pleasure to extend financial assistance of Rs.45,00,000/- to the plaintiff to purchase half portion of the land in the suit 'A' schedule property was concerned, the Trial Court held that it was a self- serving document in absence of its corroboration. The father- in-law was not examined before the Court nor his financial status to contribute Rs.45,00,000/- for purchase of 4 acres 1 gunta being half of 8 acres 2 guntas of land, was brought on record. Even for raising the amount of Rs.25,00,000/- as part of contribution towards the advance sale consideration, the plaintiff had availed loans. The plaintiff had admitted during his cross-examination that he had not discharged the said loans till date. Exs.D.2 to D.6 were the cheques issued by the plaintiff in favour of the defendant No.8 and admittedly all those cheques were dishonoured. The extract of the Savings Bank account of the plaintiff in the Corporation Bank, Indiranagar Branch, Bengaluru in between 18.01.2005 to 01.08.2005 which covered the outer limit for the performance of the contract i.e., 12.06.2005, was only Rs.4,166/-. There was nothing before the Trial Court to hold that the plaintiff had the amount to pay his part of contribution towards the balance sale consideration in - 26 - RFA No. 906 of 2018 between the period from 12.01.2005 to 12.06.2005. As the contents of Ex.P.27 remained unproved, the Trial Court held that the plaintiff was not ready as he did not have the financial capacity to perform his part of the obligation under the agreement of sale dated 12.01.2005. Therefore, the Trial Court was of the opinion that the plaintiff had failed to prove that he was ready and willing to perform his part of the obligation under the sale agreement dated 12.01.2005 (Ex.P.3). 29. On examination of the legal notice-Ex.P11 issued on behalf of the plaintiff dated 07.06.2005, the Trial Court held that the plaintiff was not inclined to purchase the suit 'A' schedule property jointly with the defendant No.7 and Ex.P.3- sale agreement did not confer any right upon the plaintiff to seek performance of the contract in respect of a portion of the suit 'A' schedule property whereas, such an option was conferred upon the vendors i.e., the defendant Nos.1 to 6 only, that too, in case if the purchasers failed to perform their part of the obligation. In such an eventuality, the vendors could have exercised their option to sell the area of suit schedule property proportionate to the amount paid by the purchasers and to sell the remaining portion of the property to whomsoever, after - 27 - RFA No. 906 of 2018 issuing notice of termination of the sale agreement to the purchasers as per Clause-8 of Ex.P.3-sale agreement. 30. The MOU dated 12.01.2005 (Ex.P.28/Ex.D39) alleged to have been entered into between the plaintiff and the defendant No.7 was not binding on the defendant Nos.1 to 6, who were neither parties nor consenting witnesses to the said MOU. Therefore, on the strength of Ex.P.28, the plaintiff could not contend that the defendant Nos.1 to 6 were bound to execute the sale deed in respect of half portion of the land in the suit 'A' schedule property as per Clause-8 of the agreement of sale. The Trial Court concluded that the plaintiff had failed to perform his part of the obligation under the MOU-Ex.D31 dated 12.01.2005, which was entered into between the plaintiff and the defendant No.7, wherein the plaintiff and the defendant No.7 had agreed to settle the payment due to the defendant No.8 separately from the agreement with the defendant Nos.1 to 6. They had agreed to pay a sum of Rs.1,11,89,500/- (i.e., 10 cheques for Rs.11,18,950/- each). However all cheques issued by the plaintiff in Exs.D.2 to D.6 in favour of the defendant No.8 got dishonoured. The return memos of those cheques would reveal that they were dishonoured for the - 28 - RFA No. 906 of 2018 reason that 'payment stopped by the drawer'. These cheques are also mentioned in Ex.D.31-MOU issued by the plaintiff. The Trial Court, therefore, held that the plaintiff was not entitled to seek a decree of specific performance of the agreement of sale dated 12.01.2005, however, held that the plaintiff had paid his part of the contribution of Rs.25,00,000/- towards payment of the advance sale consideration of Rs.50,00,000/-. The Trial Court further held that the plaintiff had failed to prove that he had spent any amount towards brokerage and for digging up of a borewell in the suit 'A' schedule property. 31. The Trial Court held that the plaintiff was not entitled for liquidated damages as the cheques issued by him in pursuance to the MOU dated 12.01.2005 in favour of the defendant No.8 got dishonoured. The non-payment of amount fixed under Ex.D.31-MOU by the plaintiff rendered the sale agreement dated 12.01.2005 unenforceable. The plaintiff himself was at fault and he alone was responsible for rescinding the sale agreement. Therefore, the plaintiff was not entitled to claim any liquidated damages under Clause-7 of Ex.P.3-sale agreement. As the plaintiff had made the contribution of Rs.25,00,000/- towards advance sale consideration which - 29 - RFA No. 906 of 2018 remained unaccounted with the defendant Nos.1 to 6, the Trial Court held that no one should be allowed to become enriched at the cost of others. Considering the same, the plaintiff was held entitled for the alternate relief of refund of advance sale consideration with reasonable interest @ 12% as against the defendant Nos.1 to 6 only. VII SUBMISSIONS ON BEHALF OF THE APPELLANT/ PLAINTIFF: 32. Sri V. Lakshminarayana, learned Senior Counsel appearing for the appellant/plaintiff has submitted that Ex.P.3- agreement of sale dated 12.01.2005; Ex.P.28-MOU dated 12.01.2005 entered into between the plaintiff and the defendant No.7; Ex.D.30-GPA dated 13.01.2005 entered into between the defendant Nos.1 to 6, the plaintiff and the defendant No.7; Ex.D.31-MOU dated 12.01.2005 entered into between the defendant No.8, the plaintiff and the defendant No.7, Ex.D.31A-the affidavit between the defendant Nos.1 to 6 and the defendant No.8 for delivery of possession to the plaintiff and the defendant No.7, are all contemporaneous documents. As per Ex.D.31A, the possession has been delivered to the plaintiff and the defendant No.7. Ex.P.3 is a joint promise between the plaintiff and the defendant No.7 - 30 - RFA No. 906 of 2018 binding on them. The rights of the plaintiff were kept intact including the defendant No.7's interest as per Ex.P.3 since the consent of the plaintiff had not been obtained to transfer the rights in favour of the defendant No.10. The defendant Nos.1 to 6 including the defendant Nos.8 and 9 were also parties to Ex.P.3 and in view of Ex.P.28, the share of the plaintiff and the defendant No.7 was admitted. The defendant No.7 or the defendant Nos.8 and 9 including the defendant Nos.1 to 6 could not have transferred the rights to the defendant No.10 without the consent of the plaintiff. 33. It was further contended that Ex.D.31A specifically envisages that the possession was delivered by the defendant Nos.1 to 6 and the defendant Nos.8 and 9 to the plaintiff and the defendant No.7 for forming a layout. A sale deed to the defendant No.10 without a possession was void. The interest of the plaintiff and the interest of the defendant No.7 under the agreement dated 12.01.2005 as per Ex.P.3 were not terminated when possession was continued with the plaintiff and the defendant No.7. Since a joint promisor could not have delivered possession to the defendant No.10 without the - 31 - RFA No. 906 of 2018 consent of the other joint promisor i.e., the plaintiff, the sale deed without possession would be void. 34. It was further submitted that when the possession had been delivered to the plaintiff and the defendant No.7 for the entire extent of land, neither the agreement was terminated in terms of Clause-8 nor the possession was recovered from the plaintiff and the defendant No.7, both being the joint promisors, the defendant No.7 alone could not have delivered the possession to the defendant No.10 without the consent of the plaintiff and therefore, the sale deed without possession was void. 35. The defendant No.7, in collusion and conspiracy with the defendant Nos.1 to 6 and the defendant No.10, with a view to deprive the rights of the plaintiff in the property, got the sale deed executed in favour of the defendant No.10, his own father and this was nothing but a fraud and deception. Therefore, the sale deed executed by the defendant Nos.1 to 6 in favour of the defendant No.10 is vitiated by fraud and collusion. The rights of the plaintiff had not been substituted to the defendant No.7 under Ex.P.3. Therefore, the rights retained with the plaintiff and the defendant No.7 under Ex.P.3, Ex.D.31A and Ex.P.28, - 32 - RFA No. 906 of 2018 and without the consent of the plaintiff, the rights could not have been transferred in favour of the defendant No.10. 36. It was submitted that from the reading of Ex.P.3 along with Ex.P.28, the rights of the plaintiff and the defendants are clear. Therefore, there is no discharge of rights of the plaintiff and the defendant No.7 in terms of Ex.P.3 and Ex.P.28. A breach of the substituted agreement would not revive the original agreement. 37. It was also submitted that Ex.P.3, Ex.P.28, Ex.D.31 and Ex.D.31A are all contemporaneous documents which should be constituted as one document. Thus, since Ex.P.3 was not terminated, the rights and possession would still be with the plaintiff and the defendant No.7. Thus, the sale deed in favour of the defendant No.10 would be void and nullity. VIII SUBMISSIONS ON BEHALF OF THE RESPONDENTS: 38. On the other hand, Sri Ashok Haranahalli, the learned Senior Counsel appearing for the respondents has supported the impugned judgment and decree and took us through the evidence on record to contend that the plaintiff had miserably failed to prove his readiness and willingness to perform his part - 33 - RFA No. 906 of 2018 of the contract and prayed for dismissal of the appeal with costs. IX POINTS FOR CONSIDERATION IN THE APPEAL: 39. The following points arise for consideration in the present appeal:- (1) Whether the appellant/plaintiff had proved his readiness and willingness to perform his part of the contract in terms of the agreement of sale dated 12.01.2005 (Ex.P.3)? (2) Whether the sale deed executed by the defendant Nos.1 to 6 in favour of the defendant No.10 with respect to the suit 'A' schedule property, wherein the defendant No.8 had signed as a witness, was a result of deception and fraud and therefore, vitiated? X. ANALYSIS AND CONCLUSION: 40. Before considering the aforesaid points, it is to be noted that the agreement of sale dated 12.01.2005 (Ex.P.3) was executed by the defendant Nos.1 to 6 in favour of the plaintiff and the defendant No.7, where the defendant Nos.8 and 9 were the confirming parties. The sale consideration of - 34 - RFA No. 906 of 2018 Rs.15,10,000/- per acre for the suit 'A' schedule property admeasuring 8 acres 2 guntas was agreed and the sale deed was to be executed within 5 months from the date of the agreement. Clause-7 of the sale agreement provided that if the vendor fails to execute the sale deed in favour of the purchaser, the purchaser may either sue for specific performance of the agreement or rescind the agreement and seek for liquidated damages along with refund of advance. The defendant Nos.1 to 6 executed a GPA on the same day i.e., 12.01.2005 in favour of the plaintiff and the defendant No.7 conferring various rights in respect of the suit 'A' schedule property including the authority to procure the documents. The defendant Nos.1 to 6 had declared in the affidavit-Ex.D.31A that the possession of the suit 'A' schedule property was handed over to the plaintiff and the defendant No.7 as part performance of the agreement of sale. A MOU dated 12.01.2005 (Ex.P.28) was executed between the plaintiff and the defendant No.7, wherein it was agreed that the suit 'A' schedule property would be purchased by them in their personal names in equal portions. Another document which is important to be considered is the MOU dated 12.01.2005 - 35 - RFA No. 906 of 2018 executed between the defendant No.8, the plaintiff and the defendant No.7. 41. Clause-2 of the said agreement would read as under: "It is agreed that the agreement for sale dated 01.06.2004 executed by Defendant No.1 to 6 in favour of Defendant No.8 in respect of Schedule-A Property stands cancelled subject to realisation of Rs.1,11,89,500/- by Defendant No.8". 42. Thus, unless and until the payment of Rs.1,11,89,500/- was made to the defendant No.8 by the plaintiff and the defendant No.7, the agreement of sale dated 01.06.2004 by the defendant Nos.1 to 6 in favour of the defendant No.8 would stand and if the said agreement would stand, the question could not arise for enforcement of the agreement of sale dated 12.01.2005. 43. It is not in dispute that all the cheques issued by the plaintiff to the defendant No.8 in accordance with the MOU dated 12.01.2005 got dishonoured with the endorsement "payment stopped by the drawer". - 36 - RFA No. 906 of 2018 44. The notice dated 09.08.2005 (Ex.D.26) issued under Section 138 of the Negotiable Instruments Act, 1881 by the defendant No.8 to the plaintiff for dishonour of the cheques issued under the MOU dated 12.01.2005 remained unanswered. Thereafter, the defendant Nos.1 to 6 had executed the sale deed in favour of the defendant No.10 with respect to the suit 'A' schedule property and the defendant No.8 signed as a witness to the said sale deed. The bank statement of the plaintiff from the Corporation Bank (Ex.P.5) for the period from 01.04.2004 to 31.03.2005 would suggest that the balance did not exceed Rs.4,166/- and the Letter-Ex.P.27 sent by the father-in-law assuring the plaintiff that he would contribute towards the balance sale consideration, could not have been relied on. The plaintiff had raised loans for making payment of Rs.25,00,000/- and he had admitted that even on the date of cross-examination, the loans remained unpaid. It may be further stated that the defendant Nos.1 to 6 were not parties to the MOU-Ex.P.28 dated 12.01.2005 executed between the plaintiff and the defendant No.7, wherein it was agreed that the suit 'A' schedule property would be purchased by the parties in their personal names in equal portion. - 37 - RFA No. 906 of 2018 45. The plaintiff could not have sought for partial performance of the sale agreement dated 12.01.2005 and therefore, the Trial Court has rightly rejected the said contention. The sale agreement dated 12.01.2005 (Ex.P.3) did not confer any right upon the plaintiff to seek performance of contract in respect of a portion of the suit 'A' schedule property. Such option was provided only to the defendant Nos.1 to 6 under Clause-8 of the agreement if the prospective purchasers failed to perform their obligation. 46. The plaintiff had failed to prove his readiness and willingness to perform his obligation under the agreement dated 12.01.2005 (Ex.P.3) and the performance of the said agreement could not have taken place till the obligation under the MOU executed between the defendant No.8, the plaintiff and the defendant No.7 dated 12.01.2005 (Ex.D.31) was discharged. 47. The plaintiff himself could not prove his readiness and willingness to perform his part of the contract or discharge the obligation under the MOU dated 12.01.2005 and therefore, as per Clause-2, the agreement dated 01.06.2004 executed by the defendant Nos.1 to 6 in favour of the defendant No.8 in respect - 38 - RFA No. 906 of 2018 of the suit 'A' schedule property could not get cancelled in absence of payment of Rs.1,11,89,500/- by the defendant No.8 and there was no question of seeking performance of the sale agreement-Ex.P.3 by the plaintiff that too, when his readiness and willingness could not get proved. In that view of the matter, we are of the opinion that there was no fraud played by the defendant No.7 in collusion with the defendant Nos.1 to 6 and the defendant No.10 in execution of the sale deed in favour of the defendant No.10, wherein the defendant No.8 was the attesting witness. 48. The respondents/defendants, during the course of hearing of this case, have agreed to make payment of an amount of Rs.5,00,00,000/- to the appellant/plaintiff in the following manner in full and final settlement of all the claims in pursuance to the alleged sale agreement dated 12.01.2005 in respect of the suit 'A' schedule property, which is part of the unsigned joint memo dated 30.04.2006:- "a. The Appellant/Plaintiff has agreed to receive the amount of Rs.5,00,00,000/- (Rupees Five Crores Only) towards full and final settlement of his claims in pursuance of the alleged Sale Agreement dated 12/01/2005 in respect of the Suit Schedule Property and claims in the above - 39 - RFA No. 906 of 2018 appeal. The Respondents No. 7 and 10 (c) have agreed to pay the aforesaid amount of Rs.5,00,00,000/- (Rupees Five Crores Only) to the Appellant in following manner and he acknowledge the receipt of the said amount. i. Rs.4,95,00,000/- (Rupees Four Crores Ninety-Five Lakhs Only) paid by way of Banker's Cheque bearing 291174 dated 28/04/2026, drawn on State of Bank of India, Bangalore. ii. Rs.5,00,000/- (Rupees Five Lakhs Only) deducted towards TDS out of the total amount and will be remitted to the PAN of the Appellant to the Income tax department upon furnishing of the copy of the Aadhaar Card and PAN Card. b. The Appellant/Plaintiff shall not claim over the Suit Schedule Property either under the alleged agreement of Sale dated 12/01/20005 or in any other manner. The Appellant hereby confirms that he has no other claims whatsoever either monetary or otherwise against Respondents herein including proposed Respondent. The appellant hereby confirms that all his claims have been fully settled and he has no other claims against the respondents in the above appeal including proposed respondent or against the suit schedule properties. c. Further the Appellant and/or anyone acting through or claiming under him shall not have any claim or interest over the Suit Schedule Property and that they shall not interfere or obstruct for development of the Suit Schedule Property belonging to Mohammed Muneer Sait, the Respondents No. 7 and 10 (c) directly or indirectly in any manner. - 40 - RFA No. 906 of 2018 d. The Appellant confirms that Mohammed Muneer Sait the Respondent No.7 and 10 (c) is entitled to sell, transfer, develop, mortgage, lease and deal with the Suit Schedule Property in any manner. e. The Appellant/Plaintiff has no objection to return all documents i.e., Ex.P1 to Ex.P30 and Ex C 1 produced by the appellants/plaintiff in the suit to Respondent No.7. f. The parties entered this joint memo voluntarily without any Coercion, fraud and undue influence. g. That this Hon'ble Court may be direct the registry to refund the court fee to the Appellant. 49. Considering the aforesaid fact, while affirming the judgment and decree dated 16.02.2018 passed by the Trial Court, we direct to the respondents/defendants to make payment of the said sum of Rs.5,00,00,000/- in the aforesaid terms towards settlement of all the claims of the appellant/plaintiff over the suit 'A' schedule property under the agreement of sale dated 12.01.2005, within a period of four weeks from today. 50. We make it clear that the appellant/plaintiff will have no other claims whatsoever, either monetary or otherwise, against - 41 - RFA No. 906 of 2018 the respondents/defendants and the respondent Nos.7 and 10 would be entitled to sell, transfer, develop, mortgage, lease and deal with the suit 'A' schedule property in any manner whatsoever. 51. Let a decree be drawn accordingly. In view of disposal of the appeal, pending IAs, if any, do not survive for consideration and accordingly, they stand disposed of. Sd/- (D K SINGH) JUDGE Sd/- (T.M.NADAF) JUDGE BKV CT:SN