Dismissed

Sri R Ajit Chand Jain v. Smt. Yellamma

Karnataka HC26 Aug 2021RFA/21/2014

Case brief

AI extract

What is this about?

The High Court dismissed the revision filed by the plaintiff challenging the trial court's decree. The court held the plaintiff failed to prove readiness and willingness to pay the balance consideration, disentitling him to specific performance under the Specific Relief Act. Interest was reduced to 6% p.a. under Section 34 CPC as the transaction was not commercial.

What did the court decide?

Appeal dismissed; specific performance denied; interest reduced to 6% p.a.

Sri R Ajit Chand Jain Vs Smt. Yellamma — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26TH DAY OF AUGUST 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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R.F.A. NO.21 OF 2014 (SP)

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BETWEEN:

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SRI R AJIT CHAND JAIN, S/O RICHOB CHAND JAIN, AGED ABOUT 44 YEARS, R/A NO.29, 4TH CROSS, RAMASWAMY LAYOUT, BAYYAPPANAHALLI EXTENSION, BANGALORE-560038. ...APPELLANT

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(BY SRI M.D.RAGHUNATH, ADVOCATE)

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AND:

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SMT. YELLAMMA

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W/O LATE LAKSHMINARAYANA

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MAJOR

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SRI LAKSHMIPATHI S/O LATE LAKSHMINARAYAA MAJOR

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SRI LAKSHMIRAJU

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S/O LATE LAKSHMINARAYAA MAJOR

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SRI NATARAJ

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S/O LATE LAKSHMINARAYANA

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MAJOR

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ALL ARE R/AT NO.50/51 1ST CROSS, IST MAIN NEW BYAPPANAHALLI INDIRANAGAR POST BANGALORE-560034

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SMT LAKSHMIDEVI

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D/O LATE LAKSHMINARAYANA W/O KRISHNAPPA MAJOR

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R/O 5TH MAIN, 7TH C CROSS DEVASANDRA, K R PURAM BANGALORE-560036.

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SMT LAKSHMI D/O LATE LAKSHMINARAYANA W/O GOPAL MAJOR R/O RAMAKRISHNA REDDY LAYOUT MAHADEVAPURA BANDE POST WHITE FIELD ROAD BANGALORE-560066

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SMT VARALAKSHMI D/O LATE LAKSHMINARAYANA W/O SHANTHARAJU MAJOR

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R/O KONADASAPURA VILLAGE BIDARAHALLI HOBLI BANGALORE EAST TALUK

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BANGALORE-560036. ...RESPONDENTS

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(BY R1, R3, R4, R5, R6, R7 ARE SERVED AND UNREPRESENTED, V/O/DTD 14.09.2015 APPEAL STANDS ABATED AGAINST UNSD R2)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.09.2013 PASSED IN O.S.25638/2009 ON THE FILE OF THE XXVIIIADDL. CITY CIVIL JUDGE, MAYO HALL, BENGALURU, PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

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THIS R.F.A. COMING ON FOR HEARING, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 96 of Code of Civil Procedure, 1908 is filed against the judgment and decree dated 28.9.2013 passed in OS No.25638/2009 by the XXVIII Additional City Civil Judge at Mayohall Unit, Bengaluru.

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The ranking of the parties are referred as per their ranking before the Trial Court for convenience.

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The plaintiff is in appeal. The plaintiff filed a suit for specific performance of the contract for directing the defendants No.1 to 7 to execute the registered sale deed in pursuance of the sale agreement executed on 8.8.2004 or in the alternative to direct the defendants No.1 to 7 to return the advance sale consideration of Rs.20,00,000/- with interest at 18% p.a.

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The plaint averments are as follows:

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The deceased Lakshminarayana who was the absolute owner of the suit schedule property executed an agreement of sale dated 8.8.2004 agreeing to sell the same for a valuable sale consideration of Rs.50,00,000/to the defendants and in pursuance of the same, the plaintiff paid a sum of Rs.20,00,000/- towards sale consideration, the receipt of which was duly acknowledged by the deceased Lakshminarayana. The deceased Lakshminarayana undertook to evict the tenants in the suit schedule premises and further agreed to handover vacant possession of the same and the sale transaction was to be completed within three years from the date of execution of the sale deed. The plaintiff during the lifetime of deceased Lakshminaryana requested him to complete the sale transaction, but he went on postponing the same on one pretext or the other and he died on 24.2.2006 leaving behind the defendants No.1 to 7 as his legal heirs. The defendants No.1 to 7 turned down the request of the plaintiff to execute the sale deed stating that the dispute is pending between them and the third party in respect of the suit schedule property. The plaintiff who was always ready

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and willing to perform his part of the contract issued a notice dated 11.12.2008 calling upon the defendants to execute the sale deed. Since the defendants refused to complete the sale transaction, the plaintiff was constrained to file the present suit.

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The defendants filed a written statement denying the execution of the sale deed and contended that the sale agreement is a forged and concocted document and also denied the claim of the plaintiff that he was always ready and willing to perform his part of the contract. Hence, prayed for dismissal of the suit.

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The Trial Court on the basis of the pleadings framed the issues and recorded the evidence of the parties. The plaintiff to prove his case examined himself as PW1 and one Prakash Kothari as PW2 and exhibited documents at Exs.P1 to P8. The defendants examined defendant No.4 as DW1 and exhibited documents at Exs.D1 to D18.

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The Trial Court after examining the evidence on record held that though the plaintiff has proved the execution

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of agreement of sale in his favour but has not proved that he was always ready and willing to perform his part of the contract. Hence, the Trial Court dismissed the suit for specific performance of the sale agreement, but granted the alternative prayer for refund of advance sale consideration of Rs.20,00,000/- with interest at the rate of 6% p.a. from the date of suit till realisation. Taking exception to the same, the plaintiff is in appeal.

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The learned counsel for the plaintiff submitted that the Trial Court after having held that the plaintiff has proved the execution of sale agreement in his favour has committed an error in holding that the plaintiff was not ready and willing to perform his part of the contract having regard to the fact that substantial part of sale consideration was received by the deceased Lakshminarayana and also the evidence on record clearly establishes that the plaintiff is ready and willing to perform his part of the contract. He further submitted that the Trial Court ought to have granted interest at the rate of 18% p.a. on the advance sale consideration to be refunded to the plaintiff.

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We have considered the submissions of the

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learned counsel for the appellant and perused the records.

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The only issue involved in this appeal is whether the plaintiff is entitled for discretionary relief of specific performance of the sale agreement dated 8.8.2004 at Ex.P3.

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Ex.P3 is the agreement of sale dated 8.8.2004 executed by the deceased Lakshminarayana in favour of the plaintiff. In pursuance of the same, the plaintiff paid a sum of Rs.20,00,000/- out of the total sale consideration of Rs.50,00,000/- towards advance sale consideration. Clause6 of the sale agreement specifies that the deceased Lakshminarayana was required to handover the vacant possession of the suit property to the plaintiff within a period of three years from the date of sale agreement after evicting the tenants. The case of the plaintiff is that though he was ready and willing to perform his part of the contract, the defendants No.1 to 7 being the legal heirs of the deceased Lakshminarayana failed to execute the sale deed.

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Though the time was essence of contract, the plaintiff in his cross-examination has deposed that no written notice was issued either to the deceased Lakshminarayana or the defendants No.1 to 7 calling upon them to vacate the tenants from the suit schedule property and to execute the sale deed by receiving the balance sale consideration of Rs.30,00,000/-. It was only after expiry of three years i.e. on 11.12.2008 the plaintiff issued a notice at Ex.P5 calling upon the defendants No.1 to 7 to execute the sale deed after receiving the sale consideration. No evidence is placed by the plaintiff to substantiate his claim that he was always ready and willing to perform his part of the contract by paying the balance sale consideration of Rs.30,00,000/within the time specified in the agreement for completing the sale transaction. In the absence of proof, the plaintiff has failed to prove that he was ready and willing to perform his part of contractual obligation.

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Even otherwise, the plaintiff has not placed any evidence to prove that he was possessed the requisite fund right from the date of execution of the sale agreement till

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filing of the suit to pay the balance sale consideration which disentitles him for grant of discretionary relief of specific performance under Section 16(c) of the Specific Relief Act as held by the Division Bench of this Court in the case of Sri Punny Akat Philip Rajuy -vs- Sri Dinesh Reddy

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reported in ILR (Kar) 2016 22452.

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Clause-11 of the sale agreement at Ex.P3 specifies that the defendants are liable to refund the advance sale consideration of Rs.20,00,000/- with interest at the rate of 18% p.a. in the event the defendants fails to execute the sale deed by vacating the tenants. However, the plaintiff is not entitled for refund of advance sale consideration with interest at the rate of 18% p.a, since the plaintiff failed to perform his part of contractual obligation and it is only after expiry of more than four and half year from the date of execution of sale agreement, the plaintiff issued a written notice on 11.12.2008 calling upon the defendants to execute the sale deed by receiving the balance sale consideration. This conduct of the plaintiff disentitles him from claiming refund of the advance sale consideration with interest at the

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rate of 18% p.a. Admittedly, the sale transaction is not a commercial transaction and in view of mandate of Section 34 of Code Civil Procedure, the plaintiff is only entitled for interest at the rate of 6% p.a.

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In view of the foregoing discussion, we are of the considered view that the plaintiff is not entitled for discretionary relief of specific performance and the Trial Court after meticulous appreciation of evidence on record has passed the impugned judgment and decree and the same does not warrant any interference. There is no merit in this appeal.

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In the result, the appeal stands dismissed with costs.

Sd/JUDGE

Sd/-

JUDGE

bkm

Sri R Ajit Chand Jain v. Smt. Yellamma

Case brief

What is this about?

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Sri R Ajit Chand Jain v. Smt. Yellamma

Case brief

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