Dismissed

Smt. M N Rajeshwari v. Sri. Gurusiddappa

Karnataka HC16 Apr 2021RSA/327/2021

Case brief

AI extract

What is this about?

This appeal challenges findings that the appellant was not ready and willing to perform a sale agreement, warranting dismissal of the specific performance suit. The High Court dismissed the appeal, holding no substantial question of law arose and the impugned decree for refund of advance stood affirmed.

What did the court decide?

The appeal is dismissed. The interim injunction application stands disposed of.

Smt. M N Rajeshwari Vs Sri. Gurusiddappa — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF APRIL 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY REGULAR SECOND APPEAL NO.327 OF 2021 (SP)

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BETWEEN:

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SMT. M.N.RAJESHWARI W/O LATE M.VENKATAGIRIYAPPA AGED ABOUT 64 YEARS, R/O DODDAGATTIGANABBE, HOSAKOTE TALUK, KASABA HOBLI-562114 BENGALURU RURAL DISTRICT.

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…APPELLANT

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(BY SRI. K.K.VASANTH, ADVOCATE)

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AND:

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SRI. GURUSIDDAPPA SINCE DECEASED BY HIS LRs.

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SRI. G.SUNIL KUMAR AGED ABOUT 45 YEARS S/O LATE J.M.GURUSIDDAPPA

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SMT. SAVITHA AGED ABOUT 43 YEARS W/O LATE J.M.GURUSIDDAPPA

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SRI. G. PREMKUMAR, AGED ABOUT 12 YEARS S/O LATE J.M.GURUSIDDAPPA

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BEING MINOR REPRESENTED BY HIS NATURAL GUARDIAN AND MOTHER THE RESPONDENT NO.2 HEREIN VIZ., SMT. SAVITHA THE RESPONDENT NOs.1 TO 3 HEREIN ARE R/O JADIGENAHALLI, JADIGENAHALLI HOBLI, HOSAKOTE TALUK-562114 BENGALURU RURAL DISTRICT.

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SMT. SUSHEELA AGED ABOUT 41 YEARS, W/O MALLESH, R/O NANDHAGUDI VILLAGE AND PANCHAYATH, HOSAKOTE TALUK-562114 BENGALURU RURAL DISTRICT.

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…RESPONDENTS

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 07.08.2020 PASSED IN R.A.NO.55/2015 ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.02.2015 PASSED IN O.S.NO.920/2004 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the plaintiff challenging the concurrent finding of fact recorded by the Trial Court in

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O.S. No.920/2004 and the First Appellate Court in R.A. No.55/2015, by which both the Courts held that the plaintiff is not entitled to the relief of specific performance as she was not ready and willing to perform her part of the contract.

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Parties will henceforth be referred to as they

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were arrayed before the Trial Court.

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The plaintiff contended that the defendant had

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executed an agreement of sale on 10.09.2001 agreeing to sell the suit property for a total sale consideration of Rs.1,20,000/- and had received a sum of Rs.5,000/- and the balance sale consideration of Rs.1,15,000/- was payable at the time of registration. Sale deed was required to be executed within six months from the date of the agreement. The plaintiff claimed that she was put in possession of the suit schedule property. The plaintiff further claimed that she was always ready and willing to perform her part of the contract which was evident from the notice dated 12.07.2004 issued by her calling upon the

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defendant to execute a deed of absolute sale. Further notice dated 28.07.2004 was issued calling upon the defendant to execute the deed of absolute sale which when not responded, compelled the plaintiff to file the suit for specific performance.

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The defendant denied the execution of the agreement of sale and receipt of a sum of Rs.5,000/- as advance sale consideration from the plaintiff. He claimed that he was in need of money for clearing a hand loan and for improvement of the property and for family necessity. Therefore, he approached the plaintiff for a hand loan of Rs.5,000/- and executed a document in favour of the plaintiff and her husband considering it as a document for security of repayment of the loan of Rs.5,000/-. The defendant contended that the plaintiff and her husband took his signatures and thumb impression on blank stamp papers and blank white papers which were converted into an agreement of sale to suit the convenience of the plaintiff. He contended that the value of the suit property

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was more than Rs.1,50,000/- per acre in the year 2001. He further contended that he had not executed either the agreement of sale dated 10.09.2001 or agreement of sale dated 18.02.2002. He sought for dismissal of the suit.

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Based on these rival contentions, the Trial

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Court framed the following issues:

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“1. Whether the plaintiff proves that defendant has executed an agreement of sale on 10/09/2001 for the total consideration of Rs.1,20,000/-?

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Whether the plaintiff proves that he has paid a sum of Rs.5,000/- as an advance amount?

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Whether the plaintiff proves that in pursuance of the agreement of sale, he was put in possession of the suit property ?

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

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Whether the defendant proves that the plaintiff and her husband obtained his signature on blank stamp paper and also on white paper and

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converted into an agreement of sale as pleaded in para 12 and 13 of the written statement ?

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Whether the plaintiff is entitled for specific performance of the contract ?

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In the alternative, whether the plaintiff is entitled for refund of earnest money of Rs.5,000/- with interest at 21% per annum from 16.08.2004 till the date of payment ?

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What Decree or Order ?”

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The plaintiff was examined as PW.1, who marked documents as Exs.P1 to P17 while she examined two more witnesses as PWs.2 and 3. Defendant was examined as DW.1 and he marked documents as Exs.D1 to D3.

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Based on the oral and documentary evidence, the Trial Court held that the plaintiff had proved the execution of the sale agreement dated 10.09.2001. However, the Trial Court did not frame any issue regarding the execution of the subsequent agreement dated 18.02.2002 by which the defendant allegedly requested the plaintiff to postpone the execution of the sale deed and renewed the agreement of sale dated 10.09.2001. The

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Trial Court also held that the defendant had received a sum of Rs.5,000/- as advance sale consideration from the plaintiff and that the plaintiff was placed in possession of the suit property. However, in so far as the question regarding the readiness and willingness on the part of the plaintiff to perform her part of the contract, the Trial Court held that she had not placed on record any evidence to establish that she was ready and willing to perform her part of the contract and thus, dismissed the suit in so far as the relief of specific performance of contract is concerned and directed the defendant to refund the plaintiff a sum of Rs.5,000/- along with interest at the rate of 9% per annum from 16.08.2004 till the date of realization.

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Being aggrieved by the aforesaid Judgment and Decree of the Trial Court, the plaintiff filed R.A. No.55/2015. During the interregnum i.e., before initiation of regular appeal, the defendant died and his legal heirs

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were brought on record as respondent Nos.1 to 4 in R.A. No.55/2015.

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The First Appellate Court secured the records of the Trial Court, heard the learned counsel for the parties and framed the following points for consideration:

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“1. Whether the appellant in R.A. No.55/2015 made out grounds to condone the delay in preferring her appeal as per I.A. No.1?

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Whether the appellants in R.A.156/2017 made out grounds to condone the delay in preferring their appeal in R.A. No.156/2017 ?”

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Whether the Trial Court is right in holding that defendant has executed agreement of sale dated 10.09.2001 and by receiving Rs.5,000/advance sale consideration was put the plaintiff in possession of the plaint schedule property ?

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Whether the Trial Court is right in dismissing the suit for specific performance of contract and directing the plaintiff to repay the advance sale consideration, holding that plaintiff is not proved her ready and willingness to perform her part of contract?

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Whether the Trial Court is right in holding that defendant failed to prove his defense that plaintiff obtained his signature on blank stamp paper and converted the same into agreement of sale ?

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Is there any grounds made out by the appellants in both appeal to interfere with the decree and judgment passed by the Trial Court ?

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7. What Order ?”

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The First Appellate Court held that in the face

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of the written statement filed by the defendant admitting the signatures found on Ex.P8 – agreement of sale, the plaintiff had proved the execution of the agreement of sale in respect of the suit property. In so far as the question regarding the subsequent agreement dated 18.02.2002 is concerned, the First Appellate Court doubted the same as the plaintiff had not taken any step to establish the contents of Ex.P9. As regards the finding of the Trial Court regarding the readiness and willingness on the part of the plaintiff to perform her part of the contract, the First Appellate Court held that the plaintiff was not ready and willing to perform her part of the contract by paying the

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remaining sale consideration as fixed under Ex.P8 and thus, dismissed the appeal.

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Being aggrieved by the concurrent finding of fact recorded by the Trial Court and the First Appellate Court, the plaintiff has filed this Regular Second Appeal.

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The learned counsel for the plaintiff contended that the Trial Court as well as the First Appellate Court have held that the defendant had executed the agreement of sale dated 10.09.2001 in favour of the plaintiff, in respect of the suit schedule property. He also contended that the plaintiff had caused a notice of demand calling upon the defendant to execute the absolute sale deed and therefore, the readiness to conclude the transaction was evident. In so far as the willingness on the part of the plaintiff to perform her part of the contract, learned counsel contended that the plaintiff was capable to pay the balance sale consideration and this was made clear by issuance of notice dated 12.07.2004 (Ex.P3 and Ex.P1) to the defendant. Further, the learned counsel contended

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that since the possession of the suit property was delivered to the plaintiff, the defendant had tacitly accepted that the agreement dated 10.09.2001 was alive and enforceable by executing Ex.P9 dated 18.02.2002. Therefore, he contended that the readiness and willingness on the part of the plaintiff was proved and it was the defendant who was procrastinating the issue on one or the other ground.

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As rightly contended by the learned counsel for the plaintiff, the execution of Ex.P8 – agreement of sale is substantially established. But it was incumbent upon the plaintiff to not only plead her readiness and willingness to perform her part of the contract, but also prove the same in accordance with law. It is true that the plaintiff was not expected to tender the balance sale consideration to the defendant or deposit the same before the Court unless she was directed to do so. However, the plaintiff is bound in law to establish that she was in possession of the funds or she was capable of generating the funds required to pay the balance sale consideration to the defendant and to meet the expenses of the registration. A perusal of the

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documentary evidence on record would indicate that the plaintiff did nothing to prove her readiness and willingness to perform her part of the contract.

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Under the circumstances, having regard to the fact that less than 5% of the sale consideration was paid as advance by the plaintiff to the defendant and the suit was filed nearly after three years from the date of execution of the initial agreement of sale dated 10.09.2001, the Trial Court and the First Appellate Court have rightly held that the plaintiff was not ready and willing to perform her part of the contract and therefore, both the Courts were right in dismissing the suit filed by the plaintiff. As the question regarding readiness and willingness to conclude a transaction is a pure question of fact, no interference is called for in this regular second appeal. As no substantial question of law arises for consideration in this appeal, the same is dismissed.

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In view of disposal of this appeal, I.A. No.1/2020 for temporary injunction does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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sma

Smt. M N Rajeshwari v. Sri. Gurusiddappa

Case brief

What is this about?

What did the court decide?

Smt. M N Rajeshwari v. Sri. Gurusiddappa

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

Coram

Case details

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