IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE Mr.JUSTICE S.R.KRISHNA KUMAR CIVIL REVISION PETITION NO.278 OF 2014 BETWEEN:
SRI.KRISHNAMURTHY S/O LATE. RANGAIAH AGED ABOUT 50 YEARS R/AT-NO.104/2, 6TH CROSS KALEGOWDA SOCIETY SHIVANANDANAGAR BENGALURU – 560 091.
(BY SHRI.B.J.MAHESH, ADVOCATE) AND:
SMT.CHIKKATHAYAMMA W/O B.V.THAMMANNA AGED ABOUT 44 YEARS R/AT –NO.33, 3RD FLOOR 3RD CROSS, 3RD MAIN, ROAD OPP.SRI.KALIKAMBA TEMPL CHOWDESHWRINAGAR LAGGERE MAIN ROAD BENGALURU – 570 068.
…PETITIONER …RESPONDENT (RESPONDENT –SERVED, UNREPRESENTED) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF SMALL CAUSES COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED: 01.04.2014 PASSED IN S.C. 975/2013 ON THE FILE OF VI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, DISMISSINGN THE SUIT FILED FOR RECOVERY OF MONEY AND ETC.
THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This revision petition arises out of the judgment and decree dated 01.04.2014 passed by the VI Addl. Judge, Small Causes Court (SCH-2) in S.C.No.975/2013 dismissing the suit filed by the petitioner-plaintiff against the respondent-defendant.
2. The petitioner instituted a suit in S.C.No.975/2013 against the respondent in the Court below for recovery of a sum of Rs.75,000/- together with interest at 12% p.a., from the date of suit till realization from the respondent herein. In the suit, it was the specific contention of the petitioner that the respondent claiming to be an agreement holder in respect of immovable property bearing survey No.104/1 measuring 1 acre 3 guntas situated at Ravuthanahalli, Dasanapura Hobli, Bengaluru north taluk executed an agreement to sell dated 19.08.2010 agreeing to sell one site bearing No.19 situated in the aforesaid property in favour of the plaintiff for a total sale consideration of Rs.75,000/-. As per the terms and conditions of the agreement to sell, the respondent received an advance amount of Rs.75,000/-. The husband of the respondent has signed the said agreement as a consenting witness.
3. It was contended that as per the aforesaid agreement to sell dated 19.08.2010 executed by the respondent in favour of the petitioner, the respondent undertook to execute the absolute registered sale deed in favour of the petitioner within a period of three months by receiving the balance sale consideration. The petitioner who was ready and willing to perform his part of the contract, repeatedly called upon the respondent to comply with the terms and conditions of the agreement to sell dated 19.08.2010. When the respondent refused to comply with the said repeated requests made by the petitioner, the petitioner issued a notice dated 08.08.2013 terminating the contract and called upon the respondent to refund the advance sale consideration of Rs.75,000/- paid by him to the respondent. When the respondent refused to comply with the demand made in the said notice, the plaintiff filed the instant suit before the Court below.
4. The respondent was served with suit summons in the Court below and she did not choose to enter appearance and she was placed exparte and did not contest the suit.
5. On behalf of the plaintiff, he examined himself as P.W.1 and documentary evidence at Exs.P1 to P4 were marked on his behalf. As stated supra, the respondent remained exparte and neither contested the suit nor cross- examined P.W.1 or adduce any defence evidence.
6. By the impugned judgment, the Court below dismissed the suit of the plaintiff on the sole ground that the agreement dated 19.08.2010 produced by the petitioner was an invalid document and consequently, the petitioner was not entitled to recover the advance paid by him to the respondent under the agreement. It was held that the respondent herself did not have absolute right or title over the property agreed to be sold by her in favour of the petitioner and consequently, since the respondent did not have any right to receive any amount by way of advance from the petitioner, the question of the petitioner enforcing the agreement to sell dated 19.08.2010 and the respondent refunding the amount to him did not arise and accordingly, the Court below dismissed the suit.
7. In the present revision petition also, the respondent has been served and has not been represented.
8. I have heard the learned counsel for the petitioner and perused the material on record.
9. The learned counsel for the petitioner submitted that the Court below committed an error in dismissing the suit filed by the petitioner without considering or appreciating the unimpeached, uncontroverted and unchallenged pleadings and evidence of the petitioner which would clearly establish that the respondent had received Rs.75,000/- from the petitioner towards the agreement at Ex.P.1 dated 19.08.2010 and this approach of the Court below has resulted in erroneous conclusion. It was contended that the question regarding title or right of the respondent over the property agreed to be sold under Ex.P.1 was neither relevant nor germane for adjudication of the claim for refund of advance amount made by the petitioner and the said circumstance would be relevant only in a claim for specific performance/enforcement filed by the petitioner against the respondent. So also the validity or enforceability of the agreement dated 19.08.2010 was also not relevant to examine the right of the petitioner to seek refund of the advance amount paid by him to the respondent particularly when the respondent was guilty of unjust enrichment and was consequently, liable to refund the advance amount back to the petitioner.
10. In this context, it was contended that even assuming but not conceding that the agreement dated 19.08.2010 was invalid and unenforceable, the respondent who had received a pecuniary advantage of Rs.75,000/-
under the said agreement from the petitioner was legally bound to restore/repay/refund the said amount back to the petitioner as contemplated under Section 65 of the Indian Contract Act. Lastly, it was contended that having regard to the provisions contained in order VIII Rules 5 and 10 CPC and Section 58 of the Evidence Act coupled with the undisputed fact that the respondent had remained exparte and not disputed/denied the claim of the petitioner, the Court below committed an error in dismissing the suit of the petitioner.
11. I have given my anxious consideration to the submissions made on behalf of the petitioner and perused the material on record.
12. As rightly contended by the learned counsel for the petitioner the Court below misdirected itself in dismissing the suit filed by the petitioner without considering or appreciating the unimpeached, uncontroverted and unchallenged pleadings and evidence of the petitioner which would clearly establish that the respondent had received Rs.75,000/- from the petitioner towards the agreement at Ex.P.1 dated 19.08.2010 and this approach of the Court below has resulted in erroneous conclusion. The Court below also failed to appreciate that the question regarding title or right of the respondent over the property agreed to be sold under Ex.P.1 was neither relevant nor germane for adjudication of the claim for refund of advance amount made by the petitioner and the said circumstance would be relevant only in a claim for specific performance/enforcement filed by the petitioner against the respondent. So also the Court below did not consider or appreciate that the validity or enforceability of the agreement dated 19.08.2010 was also not relevant to examine the right of the petitioner to seek refund of the advance amount paid by him to the respondent particularly when the respondent was guilty of unjust enrichment and was consequently, liable to refund the advance amount back to the petitioner.
13. Even assuming that the agreement dated 19.08.2010 was void, invalid and unenforceable, the respondent who had received a pecuniary advantage of Rs.75,000/- under the said agreement from the petitioner was legally bound to restore/repay/refund the said amount back to the petitioner as contemplated under Section 65 of the Indian Contract Act which reads as under:
“65. Obligation of person who has received advantage under void agreement, or contract that becomes void.—When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it.
14. It is therefore clear that even assuming the agreement dated 19.08.2010 was void in the eye of law, the respondent who had received pecuniary advantage from the petitioner was duty bound to restore the same to the petitioner in accordance with the said statutory provisions. It is also relevant to note that having regard to the provisions contained in order VIII Rules 5 and 10 CPC and Section 58 of the Evidence Act coupled with the undisputed fact that the respondent had remained exparte and not disputed/denied the claim of the petitioner, the Court below committed an error in dismissing the suit of the petitioner. Thus, the respondent is clearly liable to repay/refund the advance amount of Rs.75,000/- together with interest to the petitioner who is entitled to recover the same from the respondent. Viewed from this angle also, the impugned judgment and decree passed by the Court below is clearly erroneous and the same warrants interference at the hand of this Court.
15. In view of the aforesaid facts and circumstances, the Court below committed a serious illegality and infirmity in dismissing the suit filed by the petitioner without appreciating the material on record as well as the well settled principles of law applicable to the facts of the instant case. Accordingly, the impugned judgment and decree passed by the Court below deserves to be set aside and the suit filed by the petitioner deserves to be decreed in favour of the petitioner against the respondent.
16. Accordingly, I pass the following order:
i) Civil Revision Petition is hereby allowed;
ii) Impugned judgment and decree dated 01.04.2014 passed by the VI Addl. Judge, Small Causes Court (SCH-2) in S.C.No.975/2013 is set aside;
iii) Suit of the plaintiff stands decreed with costs throughout;
iv) The respondent is hereby directed to pay a sum of Rs.75,000/- together with interest at 6% p.a., from the date of the suit till realization to the petitioner.
Sd/-
JUDGE bnv*