Shri. Jinnappa S/O Babu Maruche v. Balasaheb S/O Bahirji Chopade

Karnataka HC6 Oct 2023RFA/100255/2018

Case brief

AI extract

What is this about?

This first appeal against a judgment decreing specific performance of a property sale contract was allowed in part. The High Court set aside the trial court's decree for specific performance due to the plaintiff's delay in filing the suit and lack of due diligence, holding that specific performance was discretionary and not warranted in this case.

What did the court decide?

Impugned decree for specific performance set aside. Defendant directed to refund earnest money of Rs.3,32,000 with 8% interest and pay Rs.2 lakhs as compensation.

Shri. Jinnappa S/O Babu Maruche Vs Balasaheb S/O… — Specific Performance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR REGULAR FIRST APPEAL NO.100255/2018

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BETWEEN:

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SHRI. JINNAPPA S/O. BABU MARUCHE, AGE: 61 YRS, OCC: AGRICULTURE, R/O: KALLEHOL, TAL & DIST: BELAGAVI-590001. (BY SRI. SOURABH R. MIRJE, ADV. FOR SRI. RAMESH I ZIRALI & SRI. SANDESH P. NADIGER, ADVS)

…APPELLANT

AND:

SAMREEN AYUB

DESHNUR

Digitally signed by SAMREEN AYUB DESHNUR Date: 2023.10.11 14:41:43 +0530

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BALASAHEB S/O. BAHIRJI CHOPADE, AGE: 50 YRS, OCC: AGRICULTURE & BUSINESS, R/O: RAMGATH ROAD, GANESHPUR HINDALAGA, BELAGAVI-590001.

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…RESPONDENT

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(BY SRI. MALLIKARJUN B. HIREMATH, ADVOCATE)

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THIS RFA IS FILED UNDER SEC. 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD:28.03.2018 PASSED IN O.S.NO.404/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT.

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THIS APPEAL, COMING ON FOR FINAL HEARING ON 08.09.2023 AND THE SAME HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the judgment and decree dated 28.03.2018 passed in O.S.No.404/2013 by the III Addl. Senior Civil Judge, Belagavi. The appellant is the defendant and respondent is the plaintiff in the said suit.

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For the purpose of convenience, parties to this appeal are referred as per their rank before the trial Court.

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That plaintiff filed a suit before the trial Court with a prayer to grant the relief of specific performance of a contract against defendant by receiving the balance sale consideration amount and direct him to execute the registered sale deed in respect of suit schedule property.

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Plaintiff has described the suit schedule property in the plaint which is a part and parcel of an agricultural land measuring 22 guntas out of Sy.No.140 totally measuring 28 acres 9 guntas (including 23 guntas pot kharab) now bearing Sy.No.140/10 measuring 8 acres 10 guntas 10 annas (including 7 guntas pot kharab)

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situated at Kallehol village, taluk and district Belagavi, bounded by the boundaries mentioned in the schedule. Hereinafter referred to as suit schedule property for the purpose of convenience.

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It is the case of the plaintiff that defendant was in need of money. Therefore, during the month November, 2010, to meet his legal necessities brought the suit schedule property for sale. On getting knowledge of this, plaintiff approached defendant and expressed his desire to purchase the suit property. After negotiation, defendant agreed to sell the suit schedule property for a consideration of Rs.56,000/- per gunta and in all Rs.12,32,000/- for the entire suit property. Both plaintiff and defendant accepted prevailing market price.

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It is the further case of the plaintiff that, by virtue of the said acceptance, an agreement of sale with terms and conditions of the sale and purchase of the property, a document was reduced to writing on 11.11.2010. As per the said agreement, plaintiff issued a cheque bearing No.009476 drawn on Federal Bank,

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Shahapur branch, Belagavi, dated 11.11.2010 for Rs.3,00,000/-and he paid Rs.32,000/- by way of cash. Thus, in all he paid Rs.3,32,000/- as an advance sale consideration on 11.11.2010 itself. Defendant acknowledged the same.

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It is the further case of the plaintiff that, he agreed to pay the balance consideration amount of Rs.9,00,000/- at the time of execution and registration of sale deed in his favour. It was agreed between both that, defendant shall get measured his property and get prepared ‘11 E’ map and get correction of the record of rights at his own costs. Thereafter, plaintiff to get his sale deed executed from defendant.

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Though several requests were made by the plaintiff to comply the terms and conditions of the agreement of sale as stated supra, but defendant went on postponing the same on one or other pretext. It is his case that he was ever ready and willing to perform his part of the contract. But, defendant did not comply the terms and conditions. Therefore, looking to the conduct of

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the defendant, plaintiff issued a legal notice on 01.10.2013 and called upon defendant to comply the terms and conditions and receive the balance consideration amount, he requested defendant to execute the sale deed. But, defendant despite service of notice issued by RPAD, he did not comply. Therefore, plaintiff filed the present suit. He prayed to grant the decree for specific performance of the contract and alternatively, prayed to refund the advance consideration amount with a prayer to grant damages to the extent of Rs.2,00,000/with interest at the rate of 18% p.a. on the advance sale consideration amount so paid by him. Hence, it was prayed to grant a decree.

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The defendant by appearing before the trial Court resisted the suit of the plaintiff by filing detailed written statement interalia denying his intention to sell the suit schedule property to the plaintiff. So also denied about the terms and conditions so stated by the plaintiff in the plaint. There were no negotiations at all conducted to sell the suit schedule property to the plaintiff and he never

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agreed to sell the suit schedule property at the rate of Rs.56,000/- per gunta in all Rs.12,32,000/-. He denied each and every allegations with regard to the getting of form No.11 E, corrections in the RTC etc.,

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He denies about readiness and willingness expressed by the plaintiff to perform his part of the contract. It is denied that the defendant by suppressing the fact of agreement of sale tried to alienate the same to the third parties. He denies about the receipt of the notice and the date mentioned therein.

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It is contended that because of his necessity, he availed the loan from the plaintiff to meet the marriage expenses of his daughter. It was hand loan obtained by the defendant from the plaintiff. As the plaintiff agreed to advance the hand loan, by way of a security he has executed the said document. As he never intended to sell the suit schedule property either to the plaintiff or to the third parties, at the instance of the plaintiff, as he is illiterate, he signed the said document. When he signed the same, it was a blank paper. Therefore, it is submitted

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that as there was no agreement of sale in the manner stated by the plaintiff, he prays to dismiss the suit.

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To substantiate the assertions of the plaintiff, he himself entered the witness box as PW-1. He also examined one Bomani Krishna Birje as PW-2. Got marked Ex.P.1 to Ex.P.26 and closed plaintiff’s evidence.

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To rebut the evidence of the plaintiff, defendant himself entered the witness box as DW-1. None of the documents are marked on behalf of defendant. The witnesses so examined by both the side are thoroughly cross-examined.

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The learned trial Court on hearing both the sides and on perusal of the evidence placed on record, answered issue Nos.1, 2 and 4 in the affirmative, issue No.3 in the negative and ultimately, held that plaintiff is entitled for the relief specific performance of the contract. This is how the defendant-appellant is before this Court challenging the impugned judgment passed by the trial Court.

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ARGUMENTS OF BOTH THE SIDES

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It is submitted by the learned counsel for the

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appellant that, he disputes the very execution of the said agreement of sale to sell the suit schedule property for a consideration so mentioned in the said disputed document. It is his submission that, he obtained a loan to meet the marriage expenses of his daughter. By way of security, he signed the document which was blank at the time of his signature. He never intended to sell the suit schedule property as he got the said property in a partition effected in his joint family. The scribe of the said document though examined but the witness of the said document is not examined. The plaintiff never proved his case with legal evidence.

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It is submitted that when signature is denied, no expert opinion was obtained by the plaintiff to prove the execution of the document. It is submitted that without considering the defence of the defendant in proper perspective, the learned trial Court by wrongly assessing the evidence has decreed the suit which is against the

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mandatory provisions of the Specific Relief Act. Defendant is ready to pay the amount so received from the plaintiff. Hence, by relying upon various evidence so adduced by both the parties, and also challenging the findings of the trial Court, it is prayed to allow the appeal by dismissing the suit of the plaintiff.

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Opposing these submissions, counsel for the plaintiff-respondent submits that since the defendant agreed to sell the suit schedule property and executed Ex.P.1 and has received the advance sale consideration amount, now he cannot deny the said document. He admits his signature. It was not a loan transaction as contended by defendant. It was a pure transaction of a agreement of sale as narrated in Ex.P.1 and it was defendant who has to comply the terms and conditions of the said agreement of sale. The plaintiff was ever ready and willing to perform his part of the contract. He is ready to pay balance sale consideration amount. But, the defendant though there were persistent requests by him, went on postponing the execution of the sale deed by

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receiving the balance consideration amount on one or the other pretext. Therefore, plaintiff was constrained to issue two notices to the defendant calling upon him to comply the terms and conditions of the agreement of sale. As there was no proper response from the defendant, plaintiff was constrained to file the suit.

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It is his submission that the learned trial Court

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taking into consideration of all the aspects of the case and also the conduct of the defendant has decreed the suit granting the main relief prayed by the plaintiff. According to him, no interference is required in the findings of the trial Court while decreeing the suit.

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I have given my anxious consideration to the arguments of both the sides. Perused the records.

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The points that would arise for my

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consideration are:

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“i) Whether the trial Court has committed any illegality or perversity in

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granting the discretionary relief of specific

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performance of contract to the plaintiff? ii) If so for which relief the plaintiff is

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entitled to?”

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Point Nos.1 and 2 are answered together:

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PW-1 being the plaintiff has reiterated the plaint averments in his evidence on oath. According to him, as there was proposal to sell the suit schedule property, plaintiff approached the defendant and offered to purchase the same. Defendant agreed to sell the suit schedule property for a sale consideration of Rs.56,000/per gunta and total amount of Rs.12,32,000/- for the entire property. To that effect, negotiation took place and agreement of sale was reduced in writing signed by the defendant on 11.11.2010. On the day of the said agreement, plaintiff paid Rs.3,00,000/- by way of a cheque drawn on Federal Bank, Shahapur branch, Belagavi, and he paid Rs.32,000/- by way of cash. The remaining balance was to be paid to the extent of Rs.9 lakhs at the time of registration of the sale deed.

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There was a condition that defendant has to get the map and also RTC corrected. But, defendant did not comply the said terms and conditions despite requests by the plaintiff. Therefore, plaintiff got issued notice and as there was no proper response, the suit was filed.

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PW-1 was cross-examined by the defendant. He has stated in cross-examination that, he is a contractor by profession so also an agriculturist. He stated that it was defendant who brought the stamp paper. He admits that Ex.P.1 does not contain his photograph. He admits that the said agreement of sale is not registered. According to him, it was defendant who gave instructions to the bond writer to write the agreement of sale. He admits that he had no difficulty to produce the bank statement. Further, he stated that he entered into agreement of sale in respect of 22 guntas in Sy.No.140. It is admitted by him that there is no recital in Ex.P.1 with regard to the partition effected in the family of the defendant. According to him, Ex.P.25, was prepared when the suit was pending before the trial Court. The said

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Ex.P.25 was got prepared by the family members. This Sy.No.140 was standing jointly in the name of family members of the defendant. It has come in the evidence of PW-1 that defendant has got four sons and two daughters. Ex.P.2 contains the names of the family members of the defendant jointly. He denies the suggestion that Ex.P.1 is a created document.

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PW-2 Bomani Krishna Birje is the witness to the said document who has come before the trial Court and has deposed about he signing the said Ex.P.1 as an attesting witness. He knows plaintiff for the last 15 years. He does not know how many brothers are there to defendant. It was agreed that within two months, the sale deed was to be executed. Within that time, defendant was to obtain necessary documents. He admits that defendant acquired the schedule property from his ancestors. Thus, according to his evidence, he signed the said document as a witness.

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Ex.P.1 is the so-called agreement of sale. It is in Marathi language. As stated by PW-1, it contains the

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photograph of the defendant but it does not contain the photograph of the plaintiff. The English translation of the same is produced by the plaintiff stating that in all 22 guntas of land out of defendant’s 1/3^rd share was agreed to be sold to the plaintiff. The stipulated time was two months’ to execute the sale deed.

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Ex.P.2 is the RTC extract showing the joint names of the family members of the defendant. This document does not show the name of the defendant. In the second leaf of this Ex.P.2 name of defendant is shown in column No.9. The nature of acquisition is shown as ‘pitrarjita’ in column No.10. So far as defendant being the owner of the schedule property is concerned, it is not in dispute. Several names are appearing in the RTC extracts who are stated to be the other family members of the defendant.

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Ex.P.4 is the notice issued by the plaintiff dated 01.10.2013 and it was followed by another notice dated 03.10.2013. Postal acknowledgement with postal receipts are produced from Ex.P.6 to Ex.P.9. Receipt of these

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notices is not denied by the defendant. Ex.P.10 is an RTC extract showing several names in column No.9 wherein we find name of defendant is not appearing so also Ex.P.11. Ex.P.12 to Ex.P.23 are RTC extracts produced by the plaintiff.

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From these documents, as contended by the defendant, the said Sy.No.140 belongs to the family of the defendant. Ex.P.24 is the mutation register wherein the extent of the kharab land is shown in Sy.No.140. Name of defendant is shown in respect of Sy.No.140/10 as ‘jointly’. Thus, the said Sy.No.140 is still shown as jointly. Ex.P.25 is the sketch. Ex.P.26 is a bank statement showing payment of Rs.3 lakhs to the defendant by way of a cheque. The entry dated 16.11.2010 shows honouring of cheque issued by the plaintiff to the defendant for Rs.3 lakhs. The balance amount is shown in the bank statement of plaintiff as Rs.13,988/-. On perusal of this bank statement, till 07.01.2011 the bank entries show the available balance in the bank account of the plaintiff and it is less than Rs.9 lakhs till 07.01.2011. The time stipulated

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is two months from the date of agreement of sale to execute the sale deed. Whether plaintiff had sufficient funds to pay the balance amount, he has produced the same bank statement till 22.02.2011. Relying upon this document, it is submitted by the learned counsel for the plaintiff that though the plaintiff was ever ready to perform his part of the contract, but defendant was not ready to perform his part of the contract.

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Defendant in this case speaks in his evidence

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denying the very transaction between the plaintiff and himself. As per his evidence, the so-called agreement of sale mentioned in the plaint dated 11.11.2010 is false, created, concocted and ill-motivated. Therefore, suit of the plaintiff is not maintainable. According to his evidence, he admits that he is the owner of Sy.No.140 and now it is numbered as Sy.No.140/10 situated at Kallehola, taluk and district Belagavi. His name is appearing in the RTC extract. It is his evidence that in the month of November, 2010, he was in need of money to meet his legal necessity of performing marriage of his daughter.

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Therefore, he approached the plaintiff and obtained a loan to meet his necessity. According to him, he never agreed to sell the suit schedule property and there was no occasion for him to sell the same. He states that plaintiff has falsely pleaded about issuance of a cheque for Rs.3 lakhs dated 11.11.2010 and payment of cash of Rs.32,000/- to him. He specifically denied about receipt of the said amount so also agreement of sale. Thus, each and every allegations so made in the plaint are denied by him. Plaintiff was never an intending purchaser of the schedule property.

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His specific defence is that he is an illiterate person and he does not know to read and write any language. Plaintiff has fraudulently created the said agreement of sale suppressing the hand loan transaction. He does not know about the preparation of 11 E sketch and rectification of the revenue records. The description of the suit schedule property so mentioned in the plaint is wrong. He is put to strict proof of the same. Sy.No.140/10 is in his joint possession and enjoyment

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between himself and his brothers. Plaintiff is taking undue advantage of his name appearing in the RTC extract in respect of Sy.No.140/10 and fraudulently created alleged agreement of sale.

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On perusal of the plaint averments, as rightly pointed out by the defendant, plaintiff has amended the plaint and incorporated the property as measuring 8 acres 10 guntas 8 annas (including 7 guntas PK) situated at Kallehola village and he mentions the suit schedule property as 22 guntas out of Sy.No.140. Ex.P.1 the agreement of sale describes the suit schedule property as 22 guntas of land out of defendant’s 1/3^rd share owned and possessed by the defendant measuring 8 acres 11 guntas 12 annas fallen to the share of defendant in the partition effected in the month of August, 2009, in respect of Sy.No.140 in all measuring 28.32 acres. The said partition deed is not produced either by the plaintiff or by the defendant to substantiate about the said partition.

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DW-1 in his cross-examination admits about total extent of Sy.No.140. He admits that at the time of

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filing the suit, the suit schedule property was numbered as Sy.No.140/1. He says that there was an oral partition effected in the said survey number in between the brothers and himself. He admits that the map was got prepared by his family members and in all there are 13 hissas in the said property. He admits that now the said survey number is assigned with Sy.No.140/10. He deposes that the signatures so found which were confronted to him are not his signatures. Even he denies his signature on the vakalath. He deposes ignorance that he agreed to sell the suit schedule property at the rate of Rs.56,000/- per gunta and even denies that, he agreed to sell the suit schedule property measuring 22 guntas for a consideration of Rs.12,32,000/-.

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PW-1 stated that, he gave a cheque for Rs.3 lakhs at Ganeshpura and not at Shanivar koota. He deposes ignorance that they visited the office of the scribe by name C.M.Patil. Even he denies that his son Deepak accompanied him to the office of scribe. He denied that he also put his signature on Ex.P.1.

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It is suggested that, the witnesses so stated in Ex.P.1

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were present when the said transaction took place. Initially he says that they may be present and subsequently, he deposes ignorance. According to him, he is ready to refund the loan amount to the plaintiff. He says that when a cheque was given to him, himself and plaintiff alone were present and he got it encashed through his bank. He admits about receipt of the notice from the plaintiff. He says that though the plaintiff is ready to pay the balance consideration amount and get the sale deed executed but he is not ready. He admits that he has sold 22 guntas of land to Maruthi Patil. He further admits that, such a transaction of sale of 22 guntas to Maruthi Patil was not informed to the plaintiff. Till date, he admits that he has not got prepared map 11 E in respect of 22 guntas of land. Thus, as per the evidence of DW-1, he has already sold 22 guntas to one Maruthi Patil. He admits that if he produces the said map, it will give an information regarding sale of Sy.No.140/10. He admits that till date, the said 11 E map is not prepared

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and property of the defendant is not bifurcated and therefore, the sale deed to the plaintiff is not executed.

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No document is produced by the defendant in support of his plea.

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Though it is stated by the defendant in the written statement that to meet the marriage expenses of his daughter, he has obtained a loan but no document to that effect is produced.

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The learned trial Court relying upon evidence so adduced by the parties, concluded that in view of admission given by defendant in the cross-examination, the said so called agreement of sale, is duly proved and by holding that plaintiff is entitled to relief of specific performance of contract has decreed the suit.

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So far as relief of specific performance of contract is concerned, the said relief is governed by the provisions of the Specific Relief Act. In English as well as in Indian law, when a contract is alleged to have been broken, the ordinary remedy is damages for breach of

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contract and specific performance is ordered only in special cases. In India, these special cases are set out in Section 10 of the Specific Relief Act, 1963. But, the Act at the same time, makes it clear that specific performance of a contract may be ordered ‘in the discretion of the Court’.

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This discretion has to be exercised on judicial principles. The Specific Relief Act also makes certain provisions of detail regulating exercise of discretion. One such provision is contained in Section 20 of the Act, which is headed ‘Discretion as to decreeing specific performance’. Sub section (2) of Section 20 deals with cases in which the Court may properly exercise its discretion not to decree specific performance. One particular clause is important, in the context of alleged hardship likely to be caused by ordering specific performance.

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Section 20 (2) (b) of the Specific Relief Act provides that a Court may properly exercise discretion not to decree specific performance – where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-

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performance would involve no such hardship on the plaintiff.’ Difficult questions arise when immovable property particularly landed property forms the subject matter of the contract itself.

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In this case, as stated supra, the suit schedule property is mentioned as a part of Sy.No.140 now numbered as Sy.No.140/10 measuring 22 guntas bounded by the boundaries so mentioned in the plaint. The said Sy.No.140 was totally measuring 28 acres 9 guntas and now 13 hissas have been created in the said survey number. The plaintiff got about 8 acres 10 guntas and 8 annas of land and out of that 22 guntas of land was the subject matter of the contract. It means as argued by the learned counsel for the defendant, this 22 guntas of land is a part and parcel of the total extent of land owned by the defendant. It is his case that, he obtained the loan to meet the expenses of marriage of his daughter. Already the said property has been sold to one Maruthi Patil. It is the fact being suggested to PW-1. Therefore, where a decree for specific performance of an agreement to sell is

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sought to be imposed by registration of the sale deed, it is for the plaintiff to prove all the ingredients of grant of specific performance of the contract including the hardship to the litigant public who succeed in a suit. The agreement of sale is normally entered into between the parties with a stipulation regarding the time of completion of sale, consideration to be paid etc., and law of limitation provides a period of 3 years for filing a suit for specific performance from the date of breach of contract.

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In this case, the plaintiff has not pleaded that when there was a breach. Invariably, vendors’ drag on the case on flippant grounds, to extract more money from the intended purchaser on the ground that the value of the property has been increased from the date of agreement etc., Normally one is expected to complete the sale within the stipulated time as mentioned in the sale agreement. The Court is bestowed with power of discretion to grant decree for specific performance or for damages. But in most of the cases, the decree for specific performance is passed by the Court after prolonged litigations between

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parties at various stages. So far as relief of specific performance of relief is concerned as narrated above, it is a discretionary relief.

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Regarding the factors that ought to guide the Court’s decision in decreeing a suit for specific performance, particularly when the agreement of sale has not been given effect to within the time stipulated therein, the Hon’ble Apex Court in K.S.VIDYANADAM VS. VAIRAVAN¹ has reiterated as under:

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i) The Courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps for completion of the transaction, that must have some signature and therefore time/period prescribed cannot be ignored,

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ii) The Courts will apply greater scrutiny and strictness when considering whether the purchaser was “ready and willing”, to perform his part of the contract,

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iii) Every suit for specific performance need not be decreed merely because it is filed

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1 1997 (3) SCC 1

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within the period of limitation by ignoring the time limits stipulated in the agreement. The Courts will also “frown”, upon suits which are not filed immediately after the breach/refusal. The fact that limitation is 3 years does not mean that a purchaser can wait for one or two years to file the suit and obtain specific performance. The three year period is intended to assist the purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part – performance, where equity shifts in favour of the purchaser”.

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In the light of the above directions, if the pleadings of the plaintiff and defendant are perused, the so called agreement of sale was effected on 11.11.2010. Notices were issued to the defendant on 01.10.2013 and 03.10.2013 i.e., almost at the end of 3 years. The suit was filed on 05.12.2013 showing the cause of action as receipt of the notice of the defendant dated 01.10.2013. Though the consideration amount has been mentioned at Rs.56,000/- per gunta, in all Rs.12,32,000/-, the advance amount so alleged to have been paid is just Rs.3,32,000/on 11.11.2010. Thereafter, there was no attempt made

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by the plaintiff to pay the part of the balance consideration

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amount. That means as on date of the suit, plaintiff was still due to pay Rs.9 lakhs to the defendant. Even after filing suit, except producing his bank statement, no attempt was made by the plaintiff either to deposit the balance consideration amount or to pay the same to the defendant to show his readiness and willingness to perform part of his contract. According to defendant, there was urgent need to perform marriage of his daughter. Time is stipulated in the agreement of sale. The plaintiff having paid a sum of Rs.3,32,000/- only, out of Rs.12,32,000/- and the property was not measured, map was not obtained till this day by the defendant and suit was filed after completion of 3 years from the date of agreement of sale, shows that plaintiff has not shown his inclination to purchase the schedule property. I am mindful of the fact that, Courts may grant such a relief to balance equities, such a decree would be warranted only in cases where the plaintiff satisfactorily establishes compliance with Section 16 of the Specific Relief Act. That the measures of enhancement of compensation may be

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awarded at the discretion of the Court only if insufficiency of compensation is the only impediment to ensuring equity and preventing undue gain to one party. Looking to the conduct of the plaintiff in filing the suit at a belated stage, it does not reflect his willingness to comply with the terms of the agreement of sale.

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Except the self serving testimony of PW-1, there is no evidence placed on record by the plaintiff. So therefore, the learned trial Court is not right in granting the relief of specific performance of contract. At the most, as agreed by the defendant, plaintiff is entitled for refund of earnest money with interest along with the compensation from the defendant as he had gain of utilizing the said amount for the last 13 years.

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Therefore, the impugned judgment and decree passed by the trial Court granting relief of specific performance of contract is required to be set aside and suit of the plaintiff is to be decreed with costs by granting alternative relief of refund of money of Rs.3,32,000/together with interest @ 8% p.a. from the date of suit till

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realization. Defendant is also directed to pay the compensation of Rs.2 lakhs to the plaintiff in addition to the advance amount with interest.

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Accordingly, point No.1 raised supra is

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answered in the affirmative. Resultantly, I pass the following:

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ORDER

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i) Appeal filed by the appellant/defendant is allowed in part,

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ii) The impugned judgment and decree dated 28.03.2018 passed in O.S.No.404/2013 by

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the III Addl. Senior Civil Judge, Balagavi, granting specific performance of contract is set aside.

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iii) The defendant is hereby directed to refund the earnest money of Rs.3,32,000/- to the plaintiff with interest at the rate of 8% p.a. from the date of suit till realization within two

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months from today. In addition to the same,

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defendant is further directed to pay Rs.2 lakhs to the plaintiff as compensation.

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There shall be modified decree in the above terms.

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No orders as to costs.

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Send back the trial Court records along with copy of

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the judgment forthwith.

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Sd/JUDGE

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Jm/-

Shri. Jinnappa S/O Babu Maruche v. Balasaheb S/O Bahirji Chopade

Case brief

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Shri. Jinnappa S/O Babu Maruche v. Balasaheb S/O Bahirji Chopade

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