IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI REGULAR SECOND APPEAL NO.1338 OF 2009 BETWEEN:
SMT GIRIJAMMA W/O SRI YOGARAJ AGED ABOUT 37 YEARS R/AT GUNGARAHALLI VILLAGE MALEHALLI, KOOTAGAL HOBLI RAMANAGARA TALUK AND DISTRICT. ….APPELLANT (BY SRI. PRAKASH T HEBBAR, ADVOCATE) AND:
SMT LALITHAMMA W/O SRI GANGALAKKAIAH MAJOR R/AT GUNGARAHALLI VILLAGE MALEHALLI, KOOTAGAL HOBLI RAMANAGARA TALUK AND DIST. …RESPONDENT (BY SRI. PRADEEP J A, ADVOCATE FOR SRI. N SUBBA SHASTRY, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:18.4.2009 PASSED IN R.A.NO.123 OF 2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, (SR.DN.), RAMANAGARAM, DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT AND DECREE DATED: 5.6.2002 PASSED IN O.S.NO.97 OF 1996 ON THE FILE OF THE CIVIL JUDGE (JR. DN.) AND ADDL. JMFC., RAMANAGARAM.
THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the plaintiff challenging the judgment and decree dated 18.4.2009 passed by the Civil Judge (Sr.Dn.) at Ramanagaram in R.A.No.123/2007 confirming the judgment and decree dated 6.8.2007 passed by the learned Civil Judge (Jr.Dn.) Ramanagaram in O.S.No.97/1996.
2. Brief facts of the case are as follows :
The plaintiff has filed a suit for specific performance of contract on the ground that the defendant is the owner of the suit property and defendant has entered into an agreement of sale on 21.9.1993 for a sum of Rs.30,000/-. That the plaintiff has paid the entire consideration amount on the same date and the suit schedule property has been in possession and enjoyment of the plaintiff. The plaintiff could not get registered the sale deed as it was agreed to execute regular sale deed within a year as there was a ban by the Government for registering the deeds on the date of agreement. The defendant handed over the original title deeds in respect of the schedule property. The plaintiff has been in possession and enjoyment of the schedule property and demanded the defendant to execute regular sale deed in her favour as agreed by the defendant.
The defendant and her husband postponed the issue on one or the other pretext. Ultimately the plaintiff got issued a legal notice on 8.5.1996 calling upon the defendant to execute registered sale deed in her favour. The defendant replied to the said legal notice and denied regarding execution of agreement of sale in favour of the plaintiff. But the defendant has admitted the plaintiff’s possession but states it was leased in favour of the plaintiff.
The plaintiff pleaded that she was ever ready and willing to perform her part of the contractual obligation under the agreement of sale and despite her readiness and willingness to have the sale deed executed, the defendant woven an imaginary theory of alleged land lord and tenant to deprive the plaintiff the fruits of agreement of sale.
Further, it is averred that there is no relationship of land lord and tenant between the plaintiff and defendant and there is no tenancy agreement or lease agreement between the plaintiff and defendant. As such, as there is no relationship of land lord and tenant, question of payment of any alleged rent by the plaintiff to the defendant in respect of the schedule property does not arise at all.
There is no delay and latches on the part of the plaintiff in performing her contractual obligation. The defendant is not ready and willing to perform her part of contract and hence prayed to decree the suit for specific performance of contract.
The defendant appeared and filed written statement denying the averments made in the plaint in regard to the agreement of sale and further denied that plaintiff handed over the title deeds in respect of the suit schedule property and further contended that the plaintiff has concocted the document and the defendant has not executed any agreement as such. She admits that she has received a legal notice and replied to said legal notice and filed additional written statement and sought for dismissal of the suit. The trial Court was pleased to frame the following issues :-
1. Whether the plaintiff proves that the defendant has executed an agreement dated 21.9.93 after receiving a sum of Rs. 30,000/-?
2. Whether the plaintiff proves that she is in possession over the suit schedule property on the date of agreement?
3. Whether the plaintiff proves that the defendant deliberately avoiding to execute the regular sale deed?
4. Whether the defendant proves that the plaintiff has obtained the signature of the defendant on the white paper and created the documents?
5. What order or decree?
The plaintiff in support of her case examined herself as PW1 and two witnesses as PWs 2 and 3 and got marked documents exhibits P1 to P4. The defendant got herself examined as DW1 and one witness as DW2 and got marked exhibits D1 and D2. The trial court held that the plaintiff has proved that the defendant has executed an agreement on 21.9.1993 after receiving a sum of Rs.30,000/- and delivered possession of the suit schedule property on the date of agreement and held that defendant deliberately avoided to execute the sale deed and further held that defendant has failed to prove that the plaintiff has obtained the signature of the defendant on white paper and created the document and answered issue Nos.1 to 3 in the affirmative and issue No.4 in the negative and decreed the suit on 5.6.2002.
The defendant aggrieved by the judgment and decree dated 5.6.2002 filed R.A.No.33/2002 before the Additional Civil Judge (Sr.Dn.) Ramanagaram. The Appellate Court allowed the appeal and set aside the judgment and remitted the matter to the trial Court to frame the additional issues and liberty was granted to the parties to amend the plaint and lead a fresh evidence on the issues framed and directed the Trial Court to give a finding on those issues.
After remission to the trial Court, the parties have not adduced any evidence. Issue Nos.1 and 4 has been answered in the affirmative. As far as additional issue No.1, it was answered in the affirmative holding that the plaintiff was always ready and willing to perform her part of contract but dismissed the suit of the plaintiff on 6.8.2007 on the ground that the suit is barred by limitation.
The plaintiff aggrieved by the judgment and decree dated 6.8.2007, filed R.A.No.123/2007 before the Principal Civil Judge (Sr.Dn.) at Ramanagaram. The Appellate Court framed the following point for consideration :
‘Whether the judgment and decree of the trial Court are arbitrary and capricious and interference is called for ?’ And answered the point in negative and dismissed the appeal confirming the judgment and decree passed by the Trial court.
The plaintiff aggrieved by the judgment and decree passed by the courts below has filed this appeal.
3. This Court admitted the appeal on the following substantial question of law :
“When the sale agreement Ex.P3 executed by the defendant is said to have been proved and when both the Courts below held that there is readiness and willingness to perform his part of the contract and further when the suit was filed within three years from the date of agreement, whether the Courts below were justified in dismissing the suit of the appellant on the ground of limitation?”
4. Heard the arguments of the learned counsel for the appellant Sri.Prakash T.Hebbar and the learned counsel for the respondent Sri.Pradeep J.S.
5. It is not in dispute that the Trial Court has held that the plaintiff has proved that the defendant has executed agreement of sale in favour of the plaintiff and received the consideration amount of Rs.30,000/- i.e. the entire consideration amount and it has also held that the plaintiff was ready and willing to perform her part of the contract. But dismissed the suit only on the ground that it is barred by limitation.
6. Agreement of sale was executed on 21.9.1993.
Date was fixed for performance i.e. within one year from the date of execution of agreement of sale and the said period could come to an end on 20.9.1994. Defendant has not executed registered sale deed after 20.9.1994 and the plaintiff got issued legal notice on 8.5.1996 calling upon the defendant to execute the registered sale deed and the defendant replied to the said notice on 16.05.1996 denying about execution of agreement. The limitation to file the suit for plaintiff starts from 20.09.1994 for a period of 3 (three) years, meaning thereby the plaintiff should have filed the suit on or before 20.09.1997. Whereas, the plaintiff has filed suit on 11.06.1996 which is well within time.
7. When the trial Court has held that the plaintiff has proved the agreement of sale, readiness and willingness, the said finding has not been challenged by the defendant in the appeal and the said findings was also confirmed by the Appellate Court.
8. Now the question is, whether the suit filed by the plaintiff is within time? Article 54 of the Limitation Act reads as under:
54. For specific performance of a contract Three years The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
8. The sum and substance of Article 54 of the Limitation Act is, limitation for filing the suit for specific performance is three years from the date fixed for performance. When time is not fixed, from the date of denial.
9. In the present case, time was fixed for performing the contract is within one year. Cause of action arose for the plaintiff to file a suit for specific performance would be only after 20.9.1994. So, the plaintiff has filed the present suit within three years from the date of refusal to perform part of the contract by defendant.
10. I would like to place reliance on the Judgment of the Hon’ble Apex Court in the case of R.LAKSHMIKANTHAM vs. DEVARAJI reported in (2019) 8 Supreme Court Cases 62 wherein it is held in paragraph 11 as follows :
“11. xxxx ‘mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; it is beyond time, the suit will be dismissed as barred by time in either case, no question of equity arises”
10. In the present case, cause of action arose on 20.9.1994 when the defendant failed to execute registered sale deed i.e. after expiry of one year from the date of execution of agreement of sale. Further cause of action arose when the plaintiff received copy of notice on 16.05.1996 and defendant denied to execute registered sale deed. Suit has been filed within three years from the date of refusal to perform specific performance. So the trial court has committed an error in holding that the suit is barred by time.
11. The learned counsel for the respondent/defendant submits that the plaintiff has not complied his part of the contract and was not ready and willing to perform her part of contract and he relies on the judgment reported in 2018(9) SCC 805 in the case of JAGJIT SINGH (DEAD) THROUGH LEGAL REPRESENTATIVES – vs – AMARJIT SINGH wherein it is held that readiness and willingness on the part of the plaintiff is a condition precedent. Failure of the plaintiff to establish readiness and willingness on his part could disentitle to specific performance of contract.
12. In the present case, both the courts have concurrently held that the plaintiff was ready and willing to perform her part of the contract. But, in the case cited by the learned counsel for the respondent i.e. the defendant, agreement was entered into between the parties for purchase of half-share in the shop in dispute for a total sale consideration of Rs.1,50,000/- and plaintiff paid Rs.1,30,000/- but did not pay the balance consideration amount. So, in such a circumstance, the Apex Court held that there was failure on the part of the plaintiff to establish readiness and willingness on his part.
13. But in the present case, as already stated, the plaintiff has already paid the entire consideration amount to the defendant. There was nothing to be performed on the part of the plaintiff. The defendant has not challenged the findings of the Trial Court on issue Nos.1 to 3 and additional issue No.1. If at all the plaintiff has not issued any legal notice calling upon the defendant to perform his part of the contract within time, the defendant would have issued a legal notice calling upon the plaintiff to perform his part of the contract. But the defendant has not issued any legal notice. The trial Court as well as the Appellate Court has committed an error in holding that the suit is barred by time, is illegal and arbitrary.
14. Hence, I answer the substantial question of law in favour of the plaintiff/appellant and accordingly, hold that the suit is within time.
Accordingly, I pass the following :
ORDER The appeal is allowed.
The judgment and decree passed by the Court below in R.A.No.123/2007 dated:18.04.2009 is set aside. Consequently, the suit of the plaintiff in O.S.No.97/1996 is decreed and the defendant is directed to execute registered sale deed in favour of the plaintiff within four months from today.
SD/- JUDGE rs