Dismissed

Siddegowda v. Sannamogegowda Since Dead by Lrs

Karnataka HC18 Dec 2020RSA/769/2011

Case brief

AI extract

What is this about?

This was an appeal by the plaintiff against a first appellate judgment dismissing a specific performance suit. The High Court upheld the appellate court's view that the agreement was essentially a loan transaction rather than a genuine sale, dismissing the appeal.

What did the court decide?

The appeal was dismissed, confirming the judgment and decree dated 16-12-2010 passed by the first appellate court.

Siddegowda Vs Sannamogegowda Since Dead by Lrs — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

R.S.A.No.769/2011

BETWEEN:

SRI SIDDEGOWDA

S/O ALTE SIDDALINGEGOWDA AGED ABOUT 63 YEARS R/AT CHIKKANAYAKANAHALLI VILLAGE, SALIGRAMA HOBLI K.R.NAGAR – 571 603 MYSORE DISTRICT.

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…APPELLANT

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(BY SRI VINAY RAGHAVENDRA FOR SRI T N RAGHUPATHY, ADVOCATE)

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AND:

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SANNAMOGEGOWDA SINCE DIED BY LRs

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SMT. HEMA W/O LATE MOHAN D/O SANNAMOGEGOWDA AGED ABOUT 45 YEARS.

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SMT. DODDAMMA W/O LATE SANNAMOGEGOWDA AGED ABOUT 68 YEARS R/AT CHIKKANAYAKANAHALLI VILLAGE, SALIGRAMA HOBLI K.R.NAGAR – 571 603.

MYSORE DISTRICT.

…RESPONDENTS

(BY SRI A LOURDU MARIYAPPA, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.12.2010 PASSED IN R.A.No.62/2010 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSORE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:4.1.2010 PASSED IN O.S.No.47/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND JMFC., K.R.NAGAR.

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THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the judgment and

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decree dated 16.12.2010 passed in R.A.No.62/2010 by the V Additional District and Sessions Judge, Mysore, wherein the appeal came to be partly allowed by setting aside the judgment and decree dated 4.1.2010 passed in O.S.No.47/2007 by the learned Civil Judge (Sr.Dn) and JMFC, K.R.Nagar.

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2. The present appeal is by the plaintiff. The

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suit for specific performance of the agreement in respect of the schedule property measuring 25 guntas of land in Sy.No.189 situate at Shabalu, Mirle Hobli, K.R.Nagar Taluk bounded on East by: Nala Yeri; West by: Lands of Ramegowda, North by: lands of plaintiff and South by lands of Kuntegowda came to be decreed by the trial court in O.S.NO.47/2007 on 4-1-2010.

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3. Being aggrieved by the judgment and

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decree of the trial court, defendant went in appeal in R.A.No.62/2010 that came to be allowed in part and

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the learned first appellate judge set aside the judgment and decree passed by the trial court, however, the defendants(appellants) were directed not to interfere with the possession of the schedule property by the plaintiff till plaintiff is evicted from

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the suit property by the defendants as per law by

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repaying the amount of Rs.40,000/-.

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In order to avoid confusion and overlapping

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the parties hereinafter are referred to in accordance with their rankings as held by them before the trial court.

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The case of the plaintiff is that defendant

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Nos.1 and 2 are spouses and owners of the suit schedule property and offered to sell the same to the plaintiff for a cash consideration of Rs.70,000/-. An agreement was executed in this connection on 20.5.1998, wherein, defendants have agreed to sell the property to the plaintiff for a cash consideration of Rs.70,000/- and advance amount received by them was Rs.40,000/- and it was agreed that the sale deed to be executed within three years from the date of sale agreement by keeping the revenue and other

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records in proper position and as per the terms of the agreement, the defendants handed over the possession of the schedule property to the plaintiff. The rest is, defendants did not respond to the demands of the plaintiff in executing the registered sale deed, despite the fact that the plaintiff was ready and willing. Thereafter, plaintiff issued legal notice and filed the suit.

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The defendants denied the execution of the registered sale agreement and contended that defendant No.1 is the owner of the schedule property and defendant No.1 did not offer to sell the schedule property for Rs.70,000/- and no agreement was entered into on 20-05-1998 and there is no question of receiving Rs.40,000/- from the plaintiff as advance sale consideration. Defendants never agreed to execute the registered sale deed of the schedule property in favour of the plaintiff. Defendants claim

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that they are in possession of the schedule property and traverse all the claim and contention of the plaintiff.

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On the basis of the pleadings and contentions of the parties, learned trial judge framed the issues regarding the execution of the agreement readiness and willingness, delivery of possession have been interference an entitlement for permanent injunction.

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The learned trial judge was accommodated

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with the oral and documentary evidence on both sides as under:

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Plaintiff:

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PW.1:Siddegowda PW.2: Yalakkigowda PW.3:Narasimhegowda

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ExP.1 Sale Agreement

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ExP.1(a) signature of Yalakkigowda (Deed writer) ExP.1(b)signature of witness Mogegowda ExP.1(c) signature Narsimhegowda ExP.2 Legal Notice office copy

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ExP.2(a)(b) Two Postal acknowledgment ExP.3 RTC.

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Defendants :

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DW.1 Doddamma.

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However no documentary evidence are produced

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by the defendants.

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9. Upon conclusion of trial, learned trial judge

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held everything was in tact insofar as relief of specific performance is concerned and answered issues and decreed the suit, with a direction to the defendants to execute the registered sale deed was to receive the balance amount of Rs.30,000/- within two months from the said date. It is further ordered that if the defendants fail to execute the registered sale deed plaintiff is at liberty to get the same through court after depositing the balance sale consideration amount and also restrained the defendants permanently from

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interfering with the plaintiff’s peaceful possession and enjoyment of the property.

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After decreeing the suit by the learned trial judge, defendants preferred an appeal before the first appellate court in regular appeal. As stated above, learned first appellate judge partly allowed the appeal and the operative portion of the judgment is as under:

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“The appeal filed by the appellants/defendants is allowed in part ant he judgment and decree passed in O.S.No.47 of 2007 on the file of Civil Judge(Sr.Div.) and JMFC K.R.Nagar dated:4.1.2010 is set aside.

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The suit of the plaintiff/respondent for specific performance of the contract sought in the plaint is dismissed.

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The appellants/defendants or any body acting on their behalf are restrained from interfering with the possession and enjoyment of the suit schedule property by the plaintiff till the plaintiff is evicted from the suit property by the defendants as per law by repaying the amount of Rs.40,000/-.

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In the circumstances of the case I direct the parties to bear their own costs.

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Sent back the records of the trial court.”

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This court while admitting the appeal has

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framed the following substantial question of law:

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“Whether the first appellate court is legally correct in holding the agreement of sale dated 20^th May 1998 as a loan transaction in the absence of a defence taken by the defendants to this effect?

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Learned counsel for the appellant/plaintiff would submit that the agreement fulfill all the features

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of a valid contract and that the signature was established ownership of the defendants was not disputed and they were spouses and were bound to execute the registered sale deed. Learned counsel for the plaintiff would further submit that there was no intention of lending money on the security of the sale agreement for the reason that the plaintiff is not a money lender and the first appellate court erred in applying the basic principles of proof of sale agreement, payment of advance consideration and

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readiness and willingness to pay sale consideration. Learned counsel would further submit that the plaintiff by virtue of the amendment and increase in stamp duty had to pay duty and penalty of Rs.70,000/- and this shows that he was interested only to buy the property and not to lend the money.

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Learned counsel Sri. Lourdru Mariyappa for defendant No.1 would submit that the learned trial judge read the suit documents against its language and the intentions of the parties regarding financial transaction was clear though not was said in the words. He would further submit that defendants never intended to sell the schedule property and it is a livelihood for their family and the contentions of the plaintiff cannot be accepted.

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A valid contract under the Indian Contract Act, 1872 is the one which is enforceable by law and

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that shall fulfill offer and acceptance, legal relationship, lawful consideration, capacity and competency of the parties, agreement not declared void, legality of it and legal formalities. These are all sufficient for an agreement to be enforceable. However, the clog is, when it is forbidden, or fraudulent or it would promote the procedures of law, immoral, illegal or opposed to the public policy are not enforceable.

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In this agreement there are no grievance of

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undue influence, mistake, mis representation and fraud of each of the parties. If this being the reference of Contract Act for the relief of specific performance provisions which regulate the specific relief act. Under the circumstances, Section 14 of the said Act contemplates so many aspects which are to be looked into while granting specific performance or the type of agreement in respect of which specific

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performance cannot be granted. In the light of this, the following additional question of law are framed;

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Whether the grant of specific performance

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was dampened due to financial transaction?

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Here it is not the question of mortgagor or mortgagee as contemplated under Section 58 of the Transfer of property Act nor it is anybody’s case here.

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The bone of contention and the substantial question is, whether the parties had intention to sell and purchase the schedule property between them and whether the trial judge’s reasons was right in holding it as a financial transaction.

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This court is bestowed with the

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responsibility of adjudicating the substantial questions of law. Again perversity becomes a question of law, mis reading and mis applying the provisions of law become another hitch. Agreement is written in

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Kannada and as I am acquainted with the Kannada

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Language, I translate the same. The features of the agreement are as under:

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Date of agreement of sale: 20-05-1998

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Purchaser: Siddegowda/ plaintiff

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Seller: Sannamogegowda and Smt. Hema

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defendants

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Total Sale consideration: Rs.70,000/-

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Advance paid:Rs.40,000/-

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Balance to be payable: Rs.30,000/-

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Time limit: 3 years.

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Other covenants are:

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Defendants have to keep all the revenue

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documents in tact for conveying proper title. Besides above, there is a covenant which does not include or warrant further interpretation. The same is “possession was delivered to the plaintiff under the agreement”. Regard being had to the fact that

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defendants in unequivocal terms say that they enjoy the possession and appropriate possession or usufructs there in lieu of interest. Finally, before the expiry of due date they would execute the registered sale deed or other wise they would pay back the amount with interest. This document from any angle has to be meticulously read. It has all features of a transaction which is nothing but borrowing and lending. The plaintiff advanced Rs.40,000/- and of course the terms of the agreement are as stated above. Further, the agreement is dated 20.5.1998 and possession of the schedule property was delivered in which event the stamp duty payable is at conveyance. However, with the benefit of registration. Here there is no whisper regarding duty and penalty. I hold that the trial court failed to apply the principles governing the specifics performance in proper perspective. However, learned appellate judge

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in his well reasoned judgment has ordered as stated

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above.

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In the circumstances, I do not find any

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infirmity or illegality or perversity in the judgment passed by the appellate court and I concur with it. The substantial questions of law are answered accordingly.

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In the result, the appeal stands dismissed confirming the judgment and decree dated 16-12-2010 passed by the first appellant court in R.A.No.62/2010.

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Sd/-

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JUDGE

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tsn*

Siddegowda v. Sannamogegowda Since Dead by Lrs

Case brief

What is this about?

What did the court decide?

Siddegowda v. Sannamogegowda Since Dead by Lrs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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