Privy Council ruled that the trial court's dismissal of a specific performance suit was correct as the plaintiff failed to prove readiness and willingness within the stipulated timeframe, despite executed agreements admitted by the defendant, justifying the ruling dismissal appeal and confirming the lower court decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.NO.1874/2005 (SP)
BETWEEN:
CHIKKANACHARYA S/O DAKSHINACHARAYA AGED ABOUT 43 YEARS
R/O BOMMANAHALLI VILLAGE B.G.NAGARA POST NAGAMANGALA TALUK
MANDYA DISTRICT … APPELLANT
(BY SRI M SHIVAPRAKASH, ADVOCATE)
AND:
S/O LATE DAKSHINACHARAYA AGED ABOUT 46 YARS R/O #52, 3RD MAIN ROAD KALYANA NAGARA
BANGALORE
W/O MAHENDRA KUMAR AGED 26 YEARS R/O YALADAHALLI VILLAGE B.G.NAGARA POST BELLUR HOBLI NAGAMANGALA TALUK MANDYA
...RESPONDENTS
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(BY SRI SARAVANA S, ADV FOR D.R. RAVISHANKAR FOR R-1 AND R-2)
THIS RFA IS FILED UNDER ORDER 41 RULE (1) R/W SECTION 96 OF CPC PRAYING TO SET ASDIE THE IMPUGNED JUDGMENT AND DECREE DATED 20.10.2005 PASSED IN O.S.NO.41/1999 ON THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN.) AND CJM AT MANDYA DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT. THIS RFA COMING ON FOR ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is filed challenging the Judgment and decree dated 20.10.2005 dismissing O.S.No.41/1999 on the file of Prl.Civil Judge (Sr.Dn.) and CJM, Mandya.
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the plaintiff had paid an amount of Rs.30,000/- as advance and the time was essence of contract to pay the balance amount agreed to execute the sale deed in favour of plaintiff within a period of three months.
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"1) Does the plaintiff prove that the defendant-1 has executed an agreement for sale on 16.8.97 in respect of suit schedule property for a consideration of Rs.1,05,000/- and that he has put the plaintiff in possession of suit property by receiving Rs.30,000/as advance amount?
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3) Does the defendant-2 prove that the time was the essence of contract?
4) Does the defendant-2 further prove that he is a bonafide purchaser for valuable consideration without notice?
5) To what relief the parties are entitled?
6) What decree or order? "
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into her name. In support of this, she also produced patta book Ex.D.2 and tax paid receipts Exs.D.9 to D.11. Assessment register extract as Exs.D.4 to 8.
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defendant No.1 in terms of Ex.P3, wherein defendant No.1 had admitted the very execution of the document particularly Ex.P2. When such being the admission available on record, the trial Court ought not to have been doubted Ex.P1 and Ex.P2.
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made and only balance of Rs.5,000/- was to be paid and inspite of that defendant No.2 having the knowledge, who is subsequent purchaser of suit schedule property belonging to plaintiff and defendant No.1, she cannot be termed as bonafide purchaser.
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the Judgment reported in AIR 2014 SC 1582 in Biswanath Ghosh (Dead) by L.Rs. and Ors. Vs. Gobinda Ghosh alias Gobindha Chandra Ghosh and
Ors. and brought to the notice of this Court at para No.26 of the Judgment with regard to - in a suit for specific performance, the plaintiff must be able to show that he is ready and willing to carry out those obligations. For the compliance of Section 16(c) of the Act, it is not necessary for the plaintiff to aver in the same words used in the Section i.e., ready and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit if sufficient fact and evidence are brought on record to satisfy the Court the readiness and willingness to perform his part of the contract. Learned counsel for the appellants would vehemently contend that plaintiff was always ready and willing to perform his part of the contract and he has already made payment of Rs.1,00,000/- and the same is evident from the records
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and hence, Judgment of the trial Court requires to set aside and suit has to be decreed.
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specific performance is a discretionary relief, even assuming that the agreement is proved, it is not necessary that the Court is bound to grant such a relief, merely because it is lawful to do so. But, however, such granting or declining to grant relief cannot be arbitrary and such an order must be guided by sound and reasonable judicial principles.
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advance towards sale consideration and the said amount would be forfeited if the plaintiff did not come forward to obtain the sale deed and in terms of recital of Ex.P2, the amount paid towards the sale consideration was forfeited and agreement was cancelled. Thereafter only, the defendant No.1 had sold the property in favour of defendant No.2 on 21.11.1998.
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plaintiff. Though plaintiff claimed that he has paid Rs.10,000/- in reply defendant No.1 categorically denied that he has not received the said amount. The trial Court rightly appreciated both oral and documentary evidence available on record and dismissed the suit and it does not require any interference by the Court.
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witnesses disputed the very execution of documents Ex.P1 and P2, this Court has to look into Ex.P3 specifically the very defendant No.1 had issued a legal notice in the month of October 1998 admitting the execution of Ex.P2.
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out of the sale consideration, the plaintiff has to pay the balance amount within one month to obtain sale deed and
if the plaintiff failed to pay the amount within the stipulated time, defendant No.1 had the right to forfeit the amount of Rs.90,000/- paid by the plaintiff. It is also the contention of defendant No.1 that inspite of letter dated 04.08.1998 was addressed to defendant No.1, he did not responded to the letter and even though he waited in the house of the plaintiff on 07.08.1998 and later on he sent a telegraphic message dated 04.09.1998 calling upon him to pay the balance sale consideration and obtain the sale deed. However, plaintiff also admitted with regard to the receipt of telegraphic message after four days and not disputed the telegram sent to him.
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Ex.P2 also no doubt there is a correction with regard to timings of one month but the plaintiff in the plaint himself as admitted the timings as one month in terms of Ex.P2.
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period of one month as mentioned in Ex.P2 - Notice issued by the defendant No.1 in terms of Ex.P3 invoking the clause of Ex.P2 that if the sale deed is not obtained within the stipulated period, there is a recital in the agreement that amount would be forfeited. Hence, defendant No.1 cancelled the agreement in terms of Ex.P3 contending that amount which has been given by the plaintiff to him as advance was forfeited. It is to be noted that in a suit for specific performance, even if the agreement are admitted and agreement is lawful and the plaintiff has to prove the fact that he was always ready and willing to perform the contract.
and Ors. wherein an observation is made that as per Section 16(c) of the Act, it is not necessary for the plaintiff to aver in the same words used in the Section i.e., ready
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and willing to perform the contract. Absence of the specific words in the plaint would not result in dismissal of the suit, if sufficient fact and evidence are brought on record to satisfy the Court the readiness and willingness to perform his part of the contract. But, in the case on hand, first of all the plaintiff has not issued any notice to defendant No.1 calling upon him to come forward to execute the sale deed within the stipulated time. It is also to be noted that in cross-examination, PW-1 categorically admits that he was having sufficient money in his account, but says that he is not having any documents to show that he was having money in his bank account.
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had requisite funds to pay balance sale consideration, his capacity to pay the balance consideration cannot be disputed. It clearly shows that he was always ready and willing to perform contract. This Judgment will not come to the aid of appellant but no documents are available to show that plaintiff had sufficient amount in his bank account.
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was admittedly one month time was stipulated and it is his contention that within one month made payment of Rs.10,000/-but on the backside of the original agreement Ex.P2, it does not contain the signature of the plaintiff that he had paid an amount of Rs.10,000/- to defendant No.1. When such being the case, this Court cannot exercise its discretion in favour of the plaintiff. The very pleadings that he has made payment of Rs.10,000/- to defendant No.1 and the same is acknowledged, there is no material before this Court. It is contended that apart from payment of Rs.10,000/-, an amount of Rs.2,000/- was also paid by way of cash to the defendant No.1 and there is also no material on record. In the case on hand, defendant No.1 has issued legal notice against the plaintiff invoking the conditions of agreement clause available on Ex.P2 and cancelled the agreement and forfeited the agreement.
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pointed out pleadings and evidence of defendant No.1, wherein the time was essence of contract and one month time is stipulated and even after lapse of one month, defendant No.1 himself has issued legal notice.
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to exercise its discretion in favour of the plaintiff cannot be accepted. Having considered the material on record though the documents Ex.P1 and P2 are executed, the plaintiff did not act in terms of the recitals of agreement Ex.P2 and hence, I do not find any force in the contention of the appellant counsel to reverse the Judgment of trial Court. No doubt the trial Court has committed an error in coming to the conclusion that Ex.P1 and P2 are doubtful documents and such approach is against the pleading and evidence available on record and as such trial Court observation is erroneous and except the said approach not committed any error. Hence, I do not find any force in the contention of the learned counsel for the appellant that trial Court has committed an error.
In view of the above discussion, I pass the following:
ORDER
Regular First Appeal is dismissed .
No costs.
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Judgment and decree dated 20.10.2005 dismissing O.S.No.41/1999 on the file of Prl.Civil Judge (Sr.Dn.) and CJM, Mandya is confirmed.
Sd/JUDGE
RR
3 issues framed by the court
Whether the trial court committed an error in dismissing the suit for specific performance despite the execution and admission of sale agreements by the defendant.
Whether the plaintiff was ready and willing to perform the contract given the stipulation that time was the essence and the plaintiff did not issue a notice to execute the sale deed within the stipula
What order should be passed in the appeal?
Colour shows how this judgement treated each authority
Chhandsi Abrol and Another Vs. M.T.RangaswamyReferred¶56
2018 (1) KCCR 305
Yallappa Vs. DurgappaReferred¶58
ILR 2006 KAR 4654 · Who else cites this
2 provisions across 1 enactments
Chikkanacharya S/o Dakshinacharaya
Rajannacharaya
B M Bhagyawathi
H.P. Sandesh
As recorded by the court registry
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