IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. M. SHYAM PRASAD REGULAR SECOND APPEAL NO.555 OF 2019 (SP) BETWEEN:
1. Sri.Chowdaiah, S/o late Dythya @ Hongaiah, Aged about 71 years, 2. Smt.Mahadevamma, W/o Chowdaiah, Aged about 61 years, 3. Sri.C.Nagesh, S/o Chowdaiah, Aged about 38 years, 4. Smt.C.Mamatha, D/o Chowdaiah, Aged about 30 years, Appellant Nos.1 to 4 are R/at Bachanahalli Malavalli, Mandya – 571 430.
...APPELLANTS (By Smt. Anusha Nandish, for Sri.Gaurav K., Advocates) AND:
M.Narasimhaswamy, S/o Mallaiah, Aged about 43 years, Residing at Bachanahalli Village, B.G.Pura Hobli, Malavalli Taluk, Mandya District – 571 401. (By Sri.G.M.Ananda, Advocate) …RESPONDENT This RSA is filed under Section 100 of CPC., 1908 against the Judgment and Decree dated 21.12.2018 passed in R.A.No.10/2018 on the file of the Senior Civil Judge, Malavalli, allowing the appeal and setting aside the Judgment and Decree dated 10.04.2018 passed in O.S.No.220/2015 on the file of the I Additional Civil Judge and JMFC., Malavalli.
This RSA coming on for Admission, this day, the Court delivered the following:-
JUDGMENT This appeal is filed by the defendants in O.S.No.220/2015 on the file of the I Additional Civil Judge and JMFC, Malavalli, Mandya (for short, ‘the Civil Court’) calling in question the judgment dated 21.12.2018 in R.A NO.10/2018 on the file of the Senior Civil Judge, Malavalli (for short, ‘the Appellate Court’).
2. The respondent has filed this suit in O.S.No.220/2015 for specific performance of the sale agreement dated 19.04.2012. The Civil Court has partly decreed the suit directing the appellants to refund a sum of Rs.62,000/- paid under the sale agreement dated 19.04.2012 along with interest at 10% p.a. from the date of the suit till the date of decree and future interest at the rate of 6% p.a. till realization. However, in the first appeal filed by the respondent in R.A.No.10/2018, the appellate Court has set aside the Civil Court’s judgment dated 10.04.2018 and has decreed the suit directing the appellants to execute the sale deed in favour of the respondent with a direction to the respondent to deposit a sum of Rs.20,000/- within fifteen days.
3. Heard the learned counsel for the appellants and the learned counsel for the respondent, and perused the impugned judgment and decree as well as the Lower Court Records.
4. The respondent has filed the suit in O.S.No.220/2015 relying upon the agreement dated 19.04.2012 admittedly executed by the appellants for sale of land measuring 20 guntas out of 27 guntas in Survey No.222/C of Bachanalli Village, B.G. Pura Hobli, Malavalli Taluk, Mandya District (for short, “subject property”).
The respondent’s case in a nutshell would be thus: The appellants agreed to sell the subject property for a total consideration of Rs.82,000/-, and he paid a sum of Rs.62,000/- on the date of the execution of the sale agreement to the appellants. The appellants agreed to receive the balance consideration of Rs.20,000/- on the date sale deed is executed for the subject property in his favour. The agreed period for completion of the transaction was thirty six months from the date of the sale agreement. He repeatedly approached the appellants who postponed the completion of transaction without justification. Therefore, he issued legal notice on 02.03.2015 calling upon the appellants to execute the sale deed.
5. The appellants contested the suit admitting the execution of the sale agreement dated 19.04.2012 but contending that this agreement was executed as part of a loan transaction under which the respondent had lent a sum of Rs.62,000/- as loan. The appellants never intended to sell the subject property. However, the appellants did not assert that they would be put to any hardship if specific performance is granted.
6. The Civil Court has found in favour of the respondent both as regards the execution of the sale agreement dated 19.04.2012 for the sale of the subject property and the respondent’s ready and willingness while considering the Issues which required the respondent to prove the execution of the sale agreement dated 19.04.2012 and his ready and willingness to complete the sale transaction in terms of the sale agreement dated 19.04.2012. The Civil Court, while answering Issue No.1 that required the appellants to prove that the agreement was only intended as a loan transaction, has concluded the appellants are unable to establish their defence. Thereafter, while considering the question of hardship as required under Section 20 of the Special Relief Act, 1963 (for short, “Specific Relief Act”) the Civil Court has concluded that the appellants are the owners of only an extent of 27 guntas of land in Survey No.222/C including the subject property and if specific performance for sale of the subject property is granted, the appellants will not be able to sustain themselves. Therefore, on the question of hardship, the Civil Court refused specific performance with direction to the appellants to refund a sum of Rs.62,000/- to the respondent as aforementioned.
7. In the first appeal filed by the respondent because of the Civil Court’s refusal of specific performance, the appellate Court has re-examined the question of hardship as required under Section 20 of the Specific Relief Act in the light of the pleadings and the evidence on record. The appellate Court has concluded that the appellants’ defence that grant of specific performance would cause hardship is specious in view of the evidence on record. The appellate Court has considered the fact that though the appellants asserted that they did not have any land other than the land measuring 27 guntas in Survey No.222/C, the appellant No.1, who is examined as DW-1, when confronted with RTC for land in Survey No.168/1 of Bachanahalli Village, B.G. Pura Hobli, Malavalli Taluk, Mandya District has admitted that Khata for an extent of 34 guntas in this land stood in his name and that the appellants were in possession thereof. However, the appellant No.1 has attempted to whittle the significance stating that this land in Survey No.168/1 is a joint family property and the appellants are not the sole owners. The appellate Court has examined this evidence in the context of appellants’ defense that they did not own any property other than the subject property. The appellate Court has concluded that the aforesaid evidence belies the appellants’ entire defense and the appellants have not approached the Court with clean hands. Therefore, the respondent could not be denied the benefit of specific performance.
8. The learned counsel for the appellants argued strenuously in support of the appeal asserting that the evidence on record, including the admission of DW-1 and Exs.P-8 and P-9, should have been considered wholistically by the appellate Court, and if so read, it could not be reasonably concluded against the appellants on the ground of hardship. The appellants would be left with only 7 guntas of land in Survey No.222/C with only a right to a share in land measuring 38 guntas in Survey No.168/1 of Bachanalli Village. Therefore, the learned counsel submits that the appellate Court’s judgment should be set aside.
9. However, the learned counsel for the appellants is not able to deny that no specific plea in this regard was taken by the appellants in the written statement, and their only defence was that the sale agreement was executed as a loan transaction and they did not intend to sell the subject property. The appellants have attempted an improvisation in the evidence in stating that they were dependant only on the land in Survey No.222/C, which includes the suit schedule property. This evidence, which is not supported by plea in the written statement, is however rendered tenuous with the DW-1 admitting that the appellants were also the owners of land in Survey No.168/1 measuring 34 guntas but with the qualification that this was their joint family property. The appellants have not furnished any evidence that could substantiate this defence even if it could be entertained without pleading. Therefore, no substantial question arises for consideration in this regard. The appellate Court, on re-appreciation of evidence on record, has granted specific performance of the sale agreement exercising its discretion as contemplated under Section 20 of the Special Relief Act and on the finding that the appellants have not approached the Court with clean hands in their defence of hardship. As such, there is no reason for interference in this appeal. The appeal is accordingly disposed of.
The learned counsel for the appellants seeks leave of this Court to withdraw a sum of Rs.20,000/- and the interest thereon, which is deposited by the respondent in compliance of the decree of the trial Court. The appellants are permitted accordingly.
SD/- JUDGE Mds/-