IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.F.A.No.332/2006 BETWEEN:
SRI PARASMAL AGED ABOUT 42 YEARS, S/O KHARTHARMJI RESIDING AT No.262, BOMMANAHALLI VILLAGE BEGUR HOBLI BANGALORE SOUTH TALUK – 560 036.
..APPELLANT (BY SRI C SHANKAR REDDY, ADVOCATE FOR SRI S CHENNARAYA REDDY, ADVOCATE) AND:
1 . SRI AROGYASWAMY AGED ABOUT 81 YEARS S/O LATE ADIKAPPA 2 . SRI JONES AGED ABOUT 46 YEARS S/O SRI AROGYA SWAMY 3 . SRI FRANCIS AGED ABOUT 34 YEARS S/O SRI AROGYA SWAMY 4 . SRI JOSEPH S/O LATE ADIKAPPA SINCE DEAD BY HIS LRs 5 TO 7.
5 . SMT. MARIYAMMA AGED ABOUT 65 YEARS W/O JOSEPH 6 . SRI KANIKYA SWAMY AGED ABOUT 54 YEARS S/O JOSEPH 7 . SRI CHINNAPPA AGED ABOUT 36 YEARS S/O JOSEPH 8 . SRI CHOWRAPPA S/O ADIKAPPA SINCE DEAD BY LRs R- 9 & R-10.
9 . SRI IRDEYA RAJ AGED ABOUT 31 YEARS S/O CHOWRAPPA 10 . SRI BALARAJU AGED ABOUT 21 YEARS S/O CHOWRAPPA ALL ARE RESIDING AT # 262 BEGUR VILLAGE, BEGUR HOBLI BANGALORE SOUTH TALUK – 560036.
..RESPONDENTS (R-1, 2, 3, 5, 6, 7, 9 AND 10 ARE SERVED, R-4 DECEASED, R- 5 TO 7 ARE TREATED AS LRS OF R-4, R-8 DECEASED, R-9 & R-10 ARE TREATED AS LRS OF R-8 VIDE ORDER DATED:31.10.2011) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.09.2005 PASSED IN O.S.No.520/99 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN), BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE AND INJUNCTION.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and Decree dated 09.09.2005 passed in O.S.No.520/99 by the learned Principal Civil Judge, Senior Division, Bengaluru Rural District, Bengaluru, wherein suit for specific performance and injunction filed by the plaintiff/appellant came to be dismissed but the suit of the plaintiff is decreed [to the extent that the defendants were directed to refund the advance amount] against defendants for Rs.1,15,000/- with court costs and interest at the rate of 12% p.a. from the date of filing suit, till the date of payment. However, specific performance in terms of the agreement of sale for registering sale deed in respect of schedule property was rejected. Being aggrieved by the said Judgment, plaintiff has preferred the present appeal. Defendants are served and unrepresented.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the trial court.
3. The gist of the case of the plaintiff is that defendants agreed to execute the registered sale deed of schedule property which consists of 21 guntas of agricultural land in Sy.No.32/4 for a consideration of Rs.2,10,000/- under the agreement of sale dated 24.12.1996 on which date the plaintiff paid advance amount of Rs.1,00,000/-. Another sum of Rs.75,000/- was paid to the defendant on 16.08.1997.
Time limit prescribed for performance of the agreement is 11 months. The plaintiff claim that defendants were not ready and willing to execute the registered sale deed in his favour. It is stated that as the defendants did not come up voluntarily for registering of schedule property by receiving balance of Rs.35,000/-, plaintiff got issued legal notice to the defendants on 21.11.97. The defendants though were in receipt of the said legal notice did not comply the notice nor replied for the same. The suit was filed by plaintiff on 13.08.99.
4. The defendants entered appearance and substance of their claim is that originally land in Sy.No.32/4 of Begur Village totally measuring 1 acre 34 guntas and the execution of agreement is admitted wherein defendants agreed to sell 21 guntas out of the said land. It is further stated that the payment of advance amount of Rs.1,00,000/- is not disputed to that extent all appears to be well. The dispute started regarding payment of Rs.75,000/- on 16.08.97 towards balance sale consideration wherein the defendants claimed that it was not Rs.75,000/-. On the other hand it was Rs.15,000/-. Thus the difference would be Rs.60,000/-.
5. Learned Judge examined the mattersv on agreement, its terms, sale consideration, ready and willingness and payment of balance sale consideration and so on and so forth. While answering the issues, the learned trial Judge has found that the plaintiff is entitled for the relief under agreement Ex.P-1 to the extent of getting back the advance amount. However, in the matter of permanent injunction and specific performance of the said agreement in executing the registered sale deed suit was rejected.
6. Learned counsel for appellant Sri C Shankar Reddy, would submit that there was no obstruction of any kind for the plaintiff to get the registered sale deed of the schedule property. The agreement was admitted. He had paid the balance sale consideration of Rs.75,000/- though it is disputed by the defendants and claimed that it was Rs.15,000/- and not Rs.75,000/-. The documents exhibited on behalf of the plaintiff are as under:
Ex.P-1 –Agreement Ex.P-1(a) – Endorsement Ex.P-1(b) to (k) –Signatures Ex.P-2 –Tax paid receipt Ex.P-3- Legal Notice Ex.P-4 – Genealogical tree Ex.P-5- Mutation Register Extract Ex.P-6- Postal receipts (10 in Nos.) Ex.P-7 – RTC Extract Ex.P-1(l) and (m) – Signature of PW-2 Ex.P-1(n) and (o) – Signature of PW-3 7. Defendants have not furnished any document.
In Ex.P-1 there is a entry which is marked as Ex.P- 1(a) wherein it is endorsed in Kannada language on 16.08.97 the vendors have received Rs.75,000/- from the purchaser. The defendants though have denied the quantum of second payment of Rs.75,000/- towards balance consideration have not produced cogent evidence or corroborative circumstances to it.
8. Learned trial Judge has ordered for the refund of sum of Rs.1,15,000/- to the plaintiff. However with interest at the rate of 12% p.a. from the date of suit till payment.
9. In the overall context and circumstances there was no impediment for the defendants to execute the registered sale deed. Neither there was unfair advantage or other difficulties as contemplated under Section 20(2)(a) & (b) of the Specific Relief Act, 1963. If the trial court was not satisfied about evidence and averments of the plaintiff regarding balance sale consideration and payment of Rs.75,000/-. It could have been ascertained and there could have been a finding regarding payment of balance consideration and that aspect could not have been treated as related to readiness and willingness and the issue framed is issue No.2 and nullifying issue No.4 for specific performance.
10. Learned counsel Sri.Shankar Reddy would submit even DW-1 has gone on record by admitting that there was no tampering of document Ex.P-1a endorsement regarding receipt of amount of Rs.75,000/-. He drew my attention to the admission of defendant wherein DW-1 has admitted that there was no tampering. However it is in this connection, the learned trial Judge has found that it was over- written and the issue regarding execution of agreement with onus on the plaintiff is not framed for the very reason the agreement was not disputed and the only question hovered around is Rs.75,000/-.
11. It can also be seen that going by the tone and tenor of the conduct of the defendants as they have agreed directly regarding execution of the agreement Ex.P-1 and the question is only regarding the authenticity of payment of Rs.75,000/- or Rs.15,000/-
12. In the overall context and circumstances though PW-1 plaintiff and other two witnesses have spoken in favour of the plaintiff, I find that the evidence is still lacking regarding payment of Rs.75,000/- and it is partly believable i.e., to the extent of Rs.15,000/- in which event non receipt of Rs.75,000/- is concerned, I am not inclined to differ with the trial Judge on the ground that the same is in consequent to the total amount of sale consideration received by the defendants from the plaintiff would be Rs.1,00,000/-
+ Rs.15,000/- = Rs.1,15,000/- and balance amount payable would be Rs.95,000/-. To that extent Judgment and decree deserves to be confirmed. However, regarding the discretion of the court in refusing specific performance is not proper. The fact of non establishing of Rs.75,000/- it was not a matter of specific performance that can be resolved. To this extent I do not agree with the learned trial Judge. Thus, the Judgment and decree dated 09.09.2005 in O.S.No.520/99 in its present shape is liable to be set aside and modified accordingly.
13. Even the case would have been the one where majority of the points do come within the meaning of Judgment on admissions under Order XII Rule 6 CPC.
Appeal is allowed in part. Judgment and decree dated 09.09.2005 passed in O.S.No.520/99 refusing specific performance of the sale agreement dated 24.12.96 is set aside as a result suit is allowed in part and defendants are directed to execute the registered sale deed in pursuance of sale agreement dated 24.12.96. So far as payment of balance sale consideration is concerned the plaintiff to deposit balance sale consideration of Rs.95,000/-. In the result, no order as to costs.
Defendants are directed to execute the registered sale deed within two months from today failing which plaintiff would be at liberty to get the same caused to be done at the instance of the trial court at the cost and expenditure of the plaintiff recoverable from the defendants. However, excluding fee of stamp duty and registration which are to be borne by the plaintiff.
SBN Sd/- JUDGE