Dismissed

Smt Sarojamma v. Sri K B Nagaraja

Karnataka HC3 Aug 2021RSA/300/2013

Case brief

AI extract

What is this about?

In this regular second appeal challenging a judgment on specific performance of a contract, the High Court dismissed the appeal. The Court found no material irregularities in the lower courts findings and noted the Registration of Sale Deed was already executed.

What did the court decide?

The regular second appeal is dismissed at the admission stage itself as appellant failed to make out grounds for a substantial question of law.

Smt Sarojamma Vs Sri K B Nagaraja — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 03^RD DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.300/2013

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BETWEEN:

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SMT. SAROJAMMA W/O LATE RUDRAPPA AGED ABOUT 61 YEARS AGRICULTURIST.

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SRI KUMARA

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S/O LATE RUDRAPPA

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AGED ABOUT 32 YEARS

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AGRICULTURIST

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THIPPESWAMY

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S/O LATE RUDRAPPA

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AGED ABOUT 33 YEARS AGRICULTURIST

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SRI SURESH

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S/O LATE RUDRAPPA

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AGED ABOUT 32 YEARS AGRICULTURIST

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ALL R/O NARASIPURA VILLAGE DAVANAGERE Taluk-577 002.

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... APPELLANTS

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(BY SRI PRABHUGOUD B TUMBIGI, ADVOCATE)

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AND:

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SRI K B NAGARAJA S/O K S BASAPPA

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AGED ABOUT 49 YEARS R/O H KALPANAHALLI VILLAGE DAVANAGERE TALUK & District-577 002.

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SMT. RENUKAMMA

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W/O LATE SHANTHAPPA AGED ABOUT 28 YEARS R/O NARASIPURA VILLAGE DAVANAGERE District-577 002.

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... RESPONDENTS

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(BY SRI UDAYSHANKAR RAI, ADVOCATE FOR R1; R2 SERVED)

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 01.08.2012 PASSED IN R.A.NO.3/2010 ON THE FILE OF THE C/C I ADDITIONAL DISTRICT JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.10.2009 PASSED IN OS.NO.74 OF 2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) DAVANAGERE.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, MADE THE FOLLOWING:

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JUDGMENT

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This regular second appeal is preferred by the legal representatives of original defendant-Rudrappa challenging the judgment and decree dated 01.08.2012 passed in RA No.3/2010 by the I Additional District Judge, Davanagere, dismissing the appeal and confirming the judgment and decree dated 24.10.2009 passed in OS No.74/2016 by the Principal

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Civil Judge (Sr. Dn.), Davanagere decreeing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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It is the case of the plaintiff that the original defendant-Rudrapa was the absolute owner of the suit schedule property bearing Sy.No.29/4 measuring 2 acres, 25 guntas situated at Narasipura Village, Anagodu Hobli, Davanagere taluk and he has agreed to sell the same in favour of the plaintiff for a consideration of Rs.1,00,000/- and in this regard, the original defendant has received Rs.75,000/- as advance and pursuant to the same, the original defendant-Rudrappa has registered the Agreement to sell dated 23.05.2003 in the Sub-Registrar’s Office, Davanagere, in favour of the plaintiff. It is the case of the plaintiff that, after execution of Agreement to sell, he approached the defendant on several occasions

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and requested the defendant to perform his part of the contract, however, the said request made by the plaintiff was rejected by the defendant and as such, the plaintiff has caused legal notice dated 15.12.2005 to the defendant, same was returned with Shara that ‘party 7 days absent’. In the result, the plaintiff has filed OS No.74/2006 on the file of the trial Court seeking the relief of specific performance of the contract, directing the defendant to execute the registered Sale Deed with regard to suit schedule property by receiving the balance sale consideration amount of Rs.25,000/-.

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After service of notice, the original defendant-Rudrappa died and as such his legal representatives entered appearance and filed detailed written statement denying the plaint averments. It is the defence of legal representatives of original defendant-Rudrappa that there were loan transactions between the deceased Rudrappa and the plaintiff and as such, the defendants denied the execution of the

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registered Agreement to sell entered into between the parties in respect of suit schedule property and as such, sought for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court has formulated following issues for its

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consideration:

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“1. Whether the plaintiff proves that the deceased defendant has entered into sale agreement on 23.05.2003 by agreeing to sell the suit schedule property for a sum of Rs.1,00,000/- and executed the registered sale agreement dated 23.05.2003 by receiving the sale consideration amount of Rs.75,000/- as advance ?

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2. Whether the plaintiff proves that he was always ready and willing to perform his part of contract ?

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3. Whether the legal representatives of deceased defendant proves that the deceased defendant had borrowed a loan from the plaintiff in the year 2001 and in view of the said loan transaction, he got executed the registered sale agreement dated 23.05.2003

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with regard to the suit schedule property by using manual force and undue influence ?

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4. Whether the plaintiff is entitled for the relief of enforcement of specific performance of the contract ?

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5. What order?

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The plaintiff examined himself as PW1 and

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another witness Ravikumar as PW2 and produced 25 documents and same were marked as Exs.P1 to P25.

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Defendant No.2- legal representative of deceased Rudrappa got examined as DW1 and no documents were produced by the defendants.

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The trial Court, after considering the material on record, by its judgment and decree dated 24.10.2009, decreed the suit of the plaintiff and as such, directed the legal representatives of deceased Rudrappa to execute the registered Sale Deed by receiving balance sale consideration of Rs.25,000/- in favour of plaintiff within two months from the date of such deposit of balance consideration amount from

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the plaintiff. Being aggrieved by the judgment and decree passed by the trial Court, legal representatives of deceased Rudrappa filed appeal in RA No.3/2010 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 01.08.2012 dismissed the appeal and as such confirmed the judgment and decree passed by the trial Court in OS No.74/2006. Being aggrieved by the judgment and decree passed

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by both the Courts below, the legal representatives of defendant-Rudrappa, have presented this Regular Second Appeal under Section 100 of CPC.

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Sri.Prabhugoud B.Tumbigi, learned counsel for the appellant contended that both the Courts below have not properly appreciated Ex.P1, the original Agreement of Sale. He further contended that there were certain loan transactions between the plaintiff and the original defendant-Rudrappa and in

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this regard, though the defendant has adduced evidence before the trial Court to establish the said fact, however, both the Courts below have not properly appreciated the same. He further contended that advance amount of Rs.75,000/- made by the plaintiff as against the total consideration of Rs.1,00,000/- in terms of the agreement of sale dated 23.05.2003 itself is doubtful, as the plaintiff has no capacity to pay such huge amount to Rudrappa (original defendant). He also contended that the plaintiff failed to establish that he was ready and willing to perform his obligation in terms of Agreement to sell dated 23.05.2003 and as such, he submits that the impugned judgment and decree passed by the Courts below requires interference in this appeal.

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Per contra, Sri.P.Uday Shankar Rai, learned counsel appearing for respondent No.1 contended that both the Courts below have

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appreciated the material on record and passed the impugned judgments and decree, which do not call for any interference in this appeal. He further contended that the plaintiff has filed Execution Petition No.207/2012 on the file of trial Court to execute the impugned judgments and decree passed by the Courts below and pursuant to same, Sale Deed has been executed in favour of plaintiff on 30.08.2013 and in view of the same, he submitted that the appeal deserves to be dismissed on this ground alone.

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Heard the learned counsel appearing for both the parties and perused the material on records.

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In view of the rival submissions made by the learned counsel appearing for both the parties, I have carefully considered the finding recorded by the trial Court, wherein, it is not in dispute that the original defendant-Rudrappa and the plaintiff have entered into registered Agreement to sell dated 23.05.2003 and as such, said Rudrappa agreed to sell

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the land bearing Sy.No.29/4, measuring 2 acres, 22 guntas situated at Narasipura, Anagodu Hobli, Davanagere in favour of plaintiff. Learned counsel for the appellant has made available the certified copy of the Ex.P1- the original Agreement to sell dated 23.05.2003 and perusal of the same would indicate that defendant Nos.D(1)(2)(3) and (4) have also signed said registered Sale Agreement and agreed to sell the suit schedule property by receiving advance amount of Rs.75,000/- out of the total consideration of Rs.1,00,000/- in favour of plaintiff. Admittedly, Ex.P1 is registered document. Learned counsel for the appellant has strenuously contended that there were certain loan transactions between the plaintiff and said Rudrappa and perusal of recital in Ex.P1 would not indicate anything relating to loan transaction. Moreover, the recital in the said agreement itself would indicate that said Rudrappa and his children have received Rs.75,000/- as an advance to sell the suit schedule property in favour of plaintiff. Insofar as

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readiness and willingness to perform the contract is concerned, it is forthcoming from the impugned judgment and decree that the plaintiff has issued legal notice dated 23.04.2005 as per Ex.P11, however, the said RPAD covers were returned and same were marked as Exs.P12 to P14. Thereafter, the plaintiff has caused legal notice dated 15.12.2005 as per Ex.P22 and same was served on the defendant and in order to prove the transaction, the plaintiff has examined one of the witnesses to the Sale Agreement dated 23.05.2003 as PW2, and testimony of the PW2 would clearly indicate that the children of the deceased Rudrappa i.e. DW1 to DW4 have also affixed their signature to the Sale Agreement (Ex.P1). In view of the same, though the learned counsel for the appellant contended with regard to readiness and willingness of the plaintiff for performance of the contract, however, perusal of the said legal notice would clearly establish the fact that the plaintiff was eager to complete the entire transaction in terms of

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recitals in the Agreement of Sale dated 23.05.2003, however, the defendant has postponed the execution of Agreement of Sale. The First Appellate Court, after re-appreciating the material on record, confirmed the judgment and decree of the trial Court as required under Order XLI Rule 31 of Code of Civil Procedure. In this regard, it is useful to refer to the judgment of The Hon'ble Supreme Court in the case of C.S.VENKATESH

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v. A.S.C. MURTHY (DEAD) BY LRs and OTHERS reported in (2020)3 SCC 280 at paragraphs 14 and

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16, has observed thus:

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“ 14. It is settled that the real character of the transaction has to be ascertained from the provisions of the documents view in the light of surrounding circumstances. …

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*** *** ***

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16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of

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contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was already ready to perform his contact. ”

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Therefore, I do not find material

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irregularities or perversity in the judgments and decree passed by the Courts below. The learned counsel for the respondent No.1 has submitted that the plaintiff has filed Execution Petition No.207/2012 before the Court below and registered Sale Deed has

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been executed in favour of plaintiff on 30.08.2013, as per the order of the trial Court and in that view of the matter, I do not find any merit in the argument advanced by the learned counsel for the appellant. Accordingly, the Regular Second Appeal is liable to be dismissed . Since, the appellant has not made out grounds for formulation of substantial question of law

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as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself, accordingly, appeal is

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dismissed.

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Sd/JUDGE

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Smt Sarojamma v. Sri K B Nagaraja

Case brief

What is this about?

What did the court decide?

Smt Sarojamma v. Sri K B Nagaraja

Case brief

What is this about?

What did the court decide?

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