Dismissed

Ramesh S/O. Krishnappa Yaligar v. Gangappa S/O. Devendrappa Hurakadli

Karnataka HC18 Jul 2022RSA/100712/2022

Case brief

AI extract

What is this about?

This regular second appeal challenges a decree for specific performance of a registered agreement of sale. The High Court rejected the argument of hardship, noting substantial payment was made, and dismissed the appeal at the admission stage for failing to formulate a substantial question of law.

What did the court decide?

Appeal dismissed at the stage of admission; Judgment and Decree of courts below confirmed.

Ramesh S/O. Krishnappa Yaligar Vs Gangappa S/O… — Specific Performance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100712 OF 2022 (SP-)

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BETWEEN:

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RAMESH S/O. KRISHNAPPA YALIGAR AGE: ABOUT 52 YEARS, OCC: BUSINESS, R/O. SAMPAGAON, TALUK. BAILHONGAL, DISTRICT. BELAGAVI-590002.

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…APPELLANT

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(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)

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AND:

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GANGAPPA S/O. DEVENDRAPPA HURAKADLI AGE: ABOUT 45 YEARS, OCC: AGRICULTURE AND PRIVATE SERVICES, R/O. SAVATAGI, NOW RESIDING AT BASAVANAGAR, 4^TH MAIN CROSS, BAILHONGAL, TALUK. BAILHONGAL, DISTRICT. BELAGAVI-590002

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…RESPONDENT

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(BY SRI. S. B. DODDAGOUDAR, ADVOCATE FOR C/R)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.12.2021 PASSED IN R.A.NO.28/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.02.2019, PASSED IN O.S. NO.342/2015 ON THE FILE OF THE ADDL. CIVIL JUDGE, BAILHONGAL, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.

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

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JUDGMENT

This Regular Second Appeal is filed by the defendant, challenging the judgment and decree dated 17.12.2021, passed in R.A.No.28/2019 on the file of the Senior Civil Judge, Bailahongal (hereinafter referred to as ‘the First Appellate Court’, for brevity), confirming the judgment and decree dated 28.02.2019, passed in O.S.No.342/2015 on the file of the Addl. Civil Judge, Bailhongal (hereinafter referred to as ‘the trial Court’, for brevity), decreeing the suit of the plaintiff.

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For the sake of convenience, the parties to 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 defendant is the absolute owner of the suit schedule property, agreeing to sell the same to the plaintiff by executing a registered agreement of sale dated 15^th May, 2015 for total consideration of Rs.2,35,000/- and on the date of the sale agreement, plaintiff paid Rs.2,00,000/- towards advance amount to the defendant and same was acknowledged by the defendant. It is further averred in the plaint that, after the

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execution of the registered agreement of sale, defendant failed to execute the registered Sale Deed in favour of the plaintiff and as such, went on postponing the same. It is further stated that the plaintiff got issued notice dated 08^th December, 2015, calling upon the defendant to execute the registered Sale Deed. Hence, the plaintiff filed O.S. No.342 of 2015 before the trial Court seeking the relief of specific performance of the registered Agreement of Sale dated 15^th May, 2015.

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On service of notice, defendant entered appearance and denied the statement made in the plaint. It is the specific defence of the defendant that he has not executed the registered Agreement of Sale. It is further pleaded that, the plaintiff and defendant are carrying business of selling betel and areca at Bazaar Road, Bailhongal and their shop is adjacent to each other. It is further averred that, the plaintiff being a money lender, the defendant has borrowed certain amount from the plaintiff and in turn signed certain blank stamp papers and same were handed over the plaintiff as security and therefore, it is the case of the defendant that the suit is not maintainable and the registered agreement of sale is a concocted document.

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Based on the pleadings on record, the trial Court

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formulated issues for its consideration. In order to prove their case, plaintiff has examined three witnesses as PW1 to PW3 and got marked 55 document as per Exhibits P1 to P55. On the other hand, defendant has examined two witnesses as DW1 and DW2 and got marked two documents as Exhibits D1 and D2. The trial Court, after considering the material on record, by its Judgment and Decree dated 28^th February, 2019 decreed the suit with respect to specific performance and being aggrieved by the same, the defendant has preferred R.A.No.28 of 2019 on the file of the First Appellate Court and the appeal was resisted by the plaintiff. The First Appellate Court, after considering the material on record, by its Judgment and Decree dated 17^th December, 2021, dismissed the appeal, consequently confirmed the Judgment and Decree passed in O.S. No.342 of 2015. Being aggrieved by the Judgment and Decree passed by the Courts below, defendant has presented this appeal.

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Heard Sri. Mallikarjunswamy B. Hiremath, learned counsel appearing for the appellant and Sri. S. B. Doddagoudar, learned counsel appearing for the respondent.

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Sri. Mallikarjunswamy B. Hiremath, learned counsel appearing for the appellant contended that the plaintiff has advanced money to the defendant, as the defendant is having business and in lieu of the same, certain signed blank papers have been given to the plaintiff by the defendant and therefore, the finding recorded by both the Courts below requires interference. He further contended that both the Courts below have not considered the plea of hardship as the suit schedule property is the only agriculture land and therefore, he sought for interference of this Court. In this connection, he referred the judgment of the Hon'ble Apex Court in the case of A. C. Arulappan Vs. Ahalya Naik reported in (2001) 6 SCC 600 and argued that, since the grant of specific performance is an equitable relief, the hardship that may be caused to the parties may be looked into for consideration.

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Per contra, Sri. S. B. Doddanagoudar, learned counsel appearing for the respondent sought to justify the impugned Judgment and Decree passed by the courts below. It is the submission of the learned counsel for the respondent that the agreement of sale dated 15^th May, 2015 is the registered document

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and same has been proved before the trial Court and therefore, the impugned Judgment and Decree passed by the courts below requires to be affirmed in this appeal.

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9. Having heard the learned counsel appearing for the

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parties, it is not in dispute that the defendant is the owner in possession of the suit schedule property. The plaintiff and defendant have entered into a registered agreement of sale dated 15^th May, 2015, whereby the defendant agreed to sell the suit schedule property for total consideration of Rs.2,35,000/-. Perusal of the registered Agreement of Sale (Exhibit P2), substantiate that the defendant has received Rs.2,00,000/- towards advance as against the total consideration of Rs.2,35,000/- to sell the suit schedule property on the date of execution of the Agreement of Sale. In order to prove Exhibit P2, the plaintiff has examined PW3, who is an attesting witness to the registered Agreement of Sale. PW2 is the scribe of agreement of sale (Exhibit P2). Defendant, though contended that he has not executed the registered Agreement of Sale in the pleadings, however, admits the execution of the Agreement of Sale in the evidence.

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Perusal of the finding recorded by both the Courts below would indicate that the plaintiff caused notice dated 08.12.2015 (Exhibit P8) calling upon the defendant to execute registered Sale Deed. It is the case of the defendant that the defendant has borrowed certain amount from the plaintiff and at the time of advancing the amount, the plaintiff took the signature of the defendant on some blank stamp papers and on return of the amount borrowed, the plaintiff has not given back the duly signed stamp papers. The said contention cannot be accepted as the Exhibit P2 is the registered Agreement of Sale and the same has been proved by examining PW2 and PW3. Perusal of the evidence of PW2 and PW3 would indicate that the plaintiff has proved the registered agreement dated 15.05.2015, much less the agreement of sale is a registered document having notice to the public at large. Though the learned counsel appearing for the appellant argued that, in the event if the suit is decreed, more hardship would be caused to the defendant, however, in this connection perusal of the finding recorded by both the Courts below would indicate that the plaintiff has paid Rs.2,00,000/- out of total consideration of Rs.2,35,000/- at the time of registration of the agreement of sale dated 15.05.2015. This would establish the fact that substantial amount has been paid

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by the plaintiff for purchasing the suit schedule land from the defendant and therefore, I do not find any merit in the argument advanced by the learned counsel appearing for the appellant placing reliance on the judgment referred to above.

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In this connection, taking into consideration the law declared by the Hon'ble Apex Court in the case of C.S.Venkatesh Vs. A.S.C.Murthy (D) By Lrs. reported in 2020 (3) SCC 280 , the plaintiff has proved the readiness and willingness to purchase the suit schedule property, as the plaintiff has issued the notice dated 08.12.2015. In view of the law declared by this Court in the case of Smt. Chikkamma @ Chikkalingamma Vs. H. G. Harinatha reported in HCR 2018 Kar 109 , as the title of the seller does not assume much importance in the suit for specific performance, I do not find any acceptable ground as urged by the learned counsel appearing for the appellant. Recently the Hon'ble Apex Court in the case of U. N. Krishnamurthy (since deceased) through LRs. Vs. A. M. Krishnamurthy, in Civil Appeal No.4703 of 2022, decided on 12^th July, 2022, held that, if the purchaser of the land paid the substantial amount to the owner of the land, hardship may not be a

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ground to interfere with the Judgment and Decree passed by the

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Courts below on merits of the case.

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In that view of the matter, the appellant has not made out a case for admitting the matter by formulating the substantial question of law as required under Section 100 of Code of Civil Procedure. Appeal is accordingly dismissed at the stage of Admission itself by confirming the Judgment and Decree passed by the First Appellate Court and trial Court.

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Ramesh S/O. Krishnappa Yaligar v. Gangappa S/O. Devendrappa Hurakadli

Case brief

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Ramesh S/O. Krishnappa Yaligar v. Gangappa S/O. Devendrappa Hurakadli

Case brief

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