Dismissed

Sri.B.J.Sanjay v. Sri.H.C.Baburajendra

Karnataka HC29 Sept 2021RSA/620/2021

Case brief

AI extract

What is this about?

In this regular second appeal, the appellant challenged the judgment of the First Appellate Court which allowed an appeal in a suit for recovery of money based on a sale agreement. The appellant argued limitation and lack of cogent reasons. The court found no error in the First Appellate Court's reappreciation of evidence and dismissed the appeal.

What did the court decide?

The Regular Second Appeal was dismissed.

Sri.B.J.Sanjay Vs Sri.H.C.Baburajendra — Contract and Commercial Disputes | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF SEPTEMBER, 2021

¶3

BEFORE

¶4

THE HON'BLE MR. JUSTICE H.P. SANDESH

¶5

R.S.A.NO.620/2021 (SP)

¶6

BETWEEN:

¶7

SRI B.J. SANJAY S/O. B.A. JIVIJAYA AGED ABOUT 59 YEARS RESIDING AT JAYASHREE ESTATE BILIGERI VILLAGE SOMWARPET TALUK

¶8

KODAGU DISTRICT-571 236

¶9

… APPELLANT

¶10

[BY SRI CHETHAN B., ADVOCATE]

¶11

AND:

¶12

SRI H.C. BABURAJENDRA S/O. LATE CHENGAPPA AGED ABOUT 59 YEARS RESIDENT OF YADUR VILLAGE SOMWARPET TALUK KODAGU DISTRICT-571 236.

¶13

… RESPONDENT

¶14

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.03.2020 PASSED IN RA.NO.38/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, SOMAWARPET, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.03.2019 PASSED IN O.S.NO.113/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SOMAWARPET.

¶15

¶16

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

¶17

J U D G M E N T

¶18

This matter is listed for admission. I have heard the learned counsel for the appellant.

¶19

This appeal is filed challenging the judgment and decree passed in R.A.No.38/2019 dated 13.03.2020 on the file of the Senior Civil Judge at Somawarpete.

¶20

The factual matrix of the case is that the respondent-plaintiff herein has filed the suit in O.S.No.113/2013 contending that he himself and appellant-defendant herein have entered into an agreement as to purchase and sale respectively of standing timbers on 23.04.1996 for a total sale consideration of Rs.32,00,000/-. On 23.04.1996, he paid a sum of Rs.1,00,000/- though a Demand Draft of the Karnataka Bank to the defendant together with cash of Rs.2,50,000/-. He paid him Rs.1,50,000/- in cash as well as a part payment out of aforesaid Rs.32,00,000/-. The defendant acknowledged the payment of Rs.4,00,000/- on a stamped voucher on 31.05.1996 excluding the payment made vide Demand Draft aforesaid. It was agreed

¶21

¶22

among them that Rs.13,50,000/- out of remaining sale consideration shall be paid to him by the plaintiff while cutting those trees and before loading 31^st load that too, after obtaining a permission to cut those trees, from the concerned department from plaintiff only at his cost. It was agreed by the defendant that, if the law, restrictions or any orders and order of the Government as to cutting of trees and for transportation would disable them from performing the terms of said agreement, then in such event, the advance amount shall be repaid to the plaintiff within a month from the date of such disability.

¶23

On 06.07.1996, the concerned department denied the permission to cut those trees as the Deputy Commissioner of Kodagu-Madikeri had issued an endorsement that their lands were scheduled as unprivileged lands. The plaintiff filed the suits in O.S.Nos.196/1996 and 197/1996 at Madikeri Court against the above orders, sought to declare their title and right over those trees. They were decreed on 29.06.1998. But, they got reversed in appeals. The second appeal of plaintiff too got dismissed. In another appeal, the matter was remitted to the Trial Court for disposal afresh. Then, the Madikeri Court

¶24

¶25

dismissed it on 27.02.2009 and appeal filed against it too got dismissed. They could not perform the terms of agreement aforesaid for the above reasons. The defendant shall repay the amount of Rs.5,00,000/-. Despite requests, the defendant did not repay him the said money. He issued a notice against him. But, in a reply, he denied the execution of the said agreement. The defendant in the suit contend that there is no cause of action and the suit is filed for wrongful gain. The plaint averments are baseless and also suit is barred by limitation.

¶26

Based on the pleadings, the Trial Court framed the

¶27

issues with regard to execution of the sale agreement and with regard to the plaintiff having paid the amount of Rs.5,00,000/to the defendant. The Trial Court also framed the issue that, in para No.10 of the sale agreement dated 23.04.1996, there is a recital that the defendant shall repay the advance of Rs.5,00,000/- if the prevailing law or restrictions from any order or orders of the Government from felling the standing trees and transporting and there is a clause for repayment.

¶28

The Trial Court, considering both oral and documentary evidence adduced by the plaintiff and defendant,

¶29

¶30

answered issue No.1 as ‘affirmative’ that the execution of the sale agreement dated 23.04.1996 has been proved, but comes to the conclusion that the plaintiff failed to prove that the defendant had received an amount of Rs.5,00,000/-. The Trial Court also answered issue No.3 as ‘affirmative’, in coming to the conclusion that there exists a clause in para No.10 of the agreement dated 23.04.1996 for repayment of the advance amount. However, the Trial Court dismissed the suit on the ground that plaintiff failed to prove the payment of Rs.5,00,000/- to the defendant.

¶31

Being aggrieved by the judgment and decree of dismissal of the suit, the respondent-plaintiff herein has filed the appeal in R.A.No.38/2019. The First Appellate Court, on reappreciation of the material available on record, in keeping the grounds urged in the appeal, formulated a point, “whether the appellant has made out a ground to set aside the judgment and decree passed by the Trial Court in O.S.No.113/2013 dated 20.03.2019”. On re-appreciation, the First Appellate Court allowed the appeal and directed the defendant to pay the amount of Rs.5,00,000/- with interest at 6% p.a. from the date

¶32

¶33

of suit till realization. Hence, the present second appeal is filed before this Court.

¶34

The learned counsel appearing for the appellantdefendant before this Court would vehemently contend that the First Appellate Court has committed an error in reversing the judgment without assigning valid and cogent reasons. It is contended that, though the suit for recovery of money is not filed within the limitation period and the appellant having proved the same, the First Appellate Court has reversed the finding of the Trial Court.

¶35

Having heard the learned counsel for the appellantdefendant and also on perusal of the judgment of the Trial Court and also the First Appellate Court, it is the case of the plaintiff that an agreement was entered into between the plaintiff and defendant on 23.04.1996. It is also the contention of the respondent-plaintiff herein that he made the payment of Rs.1,00,000/- by way of Demand Draft and also paid the additional amount of Rs.2,50,000/- in cash on the date of sale agreement. Apart from that, an amount of Rs.1,50,000/- was also paid and the same has been acknowledged by the

¶36

¶37

defendant in terms of Ex.P15. But, the contention of the appellant-defendant herein is that he has not executed the sale agreement and also not received any sale consideration. The Trial Court has committed an error in appreciating the material available on record and comes to the conclusion that no such payment was made, inspite of the fact that an amount of Rs.1,00,000/- was paid by Demand Draft. Apart from that, in terms of the agreement, an amount of Rs.2,50,000/- was paid.

¶38

The Trial Court, even though comes to the conclusion answering issue No.1 as ‘affirmative’ that the defendant had entered into an agreement dated 23.04.1996 for Rs.32,00,000/with the plaintiff, erroneously answered issue No.2 in the negative, in coming to the conclusion that no such payment was made. But, the First Appellate Court, in detail considered the material available on record particularly, paragraph No.10 with regard to payment made to defendant i.e., Rs.1,00,000/- by way of Demand Draft, Rs.2,50,000/- and Rs.1,50,000/- by way of cash and the fact that the defendant executed the cash receipt as per Ex.P15. Though the appellant-defendant herein disputed the receipt of Rs.2,50,000/- in terms of sale agreement and also

¶39

¶40

an amount of Rs.1,50,000/- by executing the document-Ex.P15, however, the appellant-defendant has not taken any steps to send the document to the Handwriting Expert to substantiate the fact that the signature does not belong to him and his only defence is total denial. But, the Trial Court comes to the conclusion that the defendant had executed the sale agreement answering issue Nos.1 and 3 as ‘affirmative’ that the defendant and plaintiff had entered into a sale agreement and in the said sale agreement, there is a recital, in case for any reasons, if the plaintiff is unable to get the permission from the concerned department in getting the permission to cut and remove the tree, he would repay the amount, but, committed an error in coming to the conclusion that there was no such payment.

¶41

Therefore, the First Appellate Court, on reappreciation of the material available on record, both oral and documentary evidence, reversed the findings of the Trial Court. Hence, I do not find any error committed by the First Appellate Court in reversing the findings of the Trial Court. The contention of the appellant-defendant herein before the Court is that the appellant herein was not represented before the First Appellate

¶42

¶43

Court and it is not his case that he was not served the appeal in R.A.No.38/2019. Merely because, he did not appear before the First Appellate Court, the same cannot be a ground to reverse the findings of the First Appellate Court. The appellant is not an illiterate and he also indulged in the process of entering into sale agreement and received the amount from the plaintiff and not taken any steps to prove his defence, otherwise amount is received by Demand Draft, in terms of agreement and also in terms of Ex.P15.

¶44

When such being the case, I do not find any error committed by the First Appellate Court in reversing the findings of the Trial Court and I do not find any ground to admit the second appeal to frame the substantial question of law invoking Section 100 of C.P.C and the findings of the First Appellate Court is based on oral and documentary evidence. Hence, I do not find any ground to admit the second appeal.

¶45

In view of the discussions made above, I pass the following:

¶46

¶47

ORDER

¶48

(i) The Regular Second Appeal is dismissed.

¶49

Sd/JUDGE

¶50

Sri.B.J.Sanjay v. Sri.H.C.Baburajendra

Case brief

What is this about?

What did the court decide?

Sri.B.J.Sanjay v. Sri.H.C.Baburajendra

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

Similar cases

Smt. Pushpalatha Vs M. Madhava

Smt. Nagamma Vs Smt. K.C.Savithri

G P Ramachandrappa Vs G K Venkatesh

Raju Vs Smt Jayamma

Smt Geetha Vs Sri Kempegowda

M K Ballukaraya Since Dead by His Lrs Vs G M Siddaramanna Charitable Trust (Regd)