Allowed

Sri K Srinivas Murthy v. Sri B Shanthakumar

Karnataka HC6 Oct 2023RFA/1351/2018

Case brief

AI extract

What is this about?

The appeal challenged a trial court decree that only ordered refund of advance sale consideration instead of specific performance of an agreement to sell a residential site. The High Court reversed, holding that the vendor-defendant's failure to obtain khata due to his own defaults and suppression of facts did not negate the plaintiff's readiness and willingness, and consequently decreed specific

What did the court decide?

Defendant directed to execute registered sale deed of suit schedule property in favour of plaintiff within four months upon plaintiff paying Rs. 20 lakhs, inclusive of balance sale consideration and a

Sri K Srinivas Murthy Vs Sri B Shanthakumar — Specific Performance | Karnataka HC (2023)

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RFA.No.1351 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY REGULAR FIRST APPEAL NO.1351 OF 2018 (SP)

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Between:

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Sri K.Srinivas Murthy, S/o Late Sri K.S.Keshavamurthy, Aged about 50 years, R/at No.162, Vajarahalli Village, BHCS Layout, Behind Sharma Garage, Kanakapura Road, Bangalore-62.

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.. Appellant

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( By Sri C.M.Nagabhushan, Advocate for Sri Sunil S. Narayan, Advocate )

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And:

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Sri B.Shanthakumar, S/o Late Sri K.S.Basavegowda, Aged about 65 years, R/at No.10/6, "Gayatri Nivas", 1^st Floor, Bugle Rock Road, Basavanagudi, Bangalore-04. .. Respondent

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( By Sri Jayakumar S. Patil, Sr.Counsel for Sri A.Kumarvel, Advocate )

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This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, praying to allow the appeal with cost and set aside the judgment and decree dated 8.6.2018,

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passed by the Prl.Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.No.442/2007 and in turn decree/allow the suit (OS.No.442/2007) filed by the plaintiff/appellant for specific performance of the agreement dated 19.12.2004, in the interest of justice and equity.

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This Regular First Appeal having been heard through Physical Hearing/Video Conference and reserved on 15.09.2023, coming on for pronouncement of Judgment this day, the Court delivered the following:

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JUDGMENT

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This is a plaintiff’s appeal. The present appellant as a plaintiff had instituted a suit against the present respondent arraigning him as defendant in O.S.No.442/2007, in the Court of the learned Prl.Senior Civil Judge, Bengaluru Rural District, Bengaluru, (hereinafter for brevity referred to as `the trial Court’), seeking the relief of specific performance of contract and for other reliefs, wherein, the trial Court has partially allowed the suit of the plaintiff.

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The summary of the plaintiff's case in the trial Court was that, he had entered into an Agreement of Sale dated 19.12.2004 with the defendant agreeing to purchase the suit schedule site bearing No.212, situated at Hosahalli Village, Uttarahalli Hobli, Bengaluru South Taluk,

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measuring East to West 40 ft. and North to South 60 ft. or 61 ft., of which the defendant was the absolute owner and in possession thereof. The sale consideration agreed as payable by the plaintiff to the defendant was a sum of 10,80,000/-. As on the date of Agreement of Sale, the plaintiff had paid an advance sale consideration of a sum of 1 lakh by way of cheque to the defendant. Again another sum of `4 lakhs as a further advance of sale consideration was paid by the plaintiff to the defendant by way of cheque on the date 23.06.2005. The defendant has acknowledged the receipt of both the advance sale considerations. An affidavit was executed by the defendant in that regard on 23.06.2005 acknowledging the receipt of further advance sale consideration. The defendant had handed over all the original documents pertaining to the suit schedule site to the plaintiff. It was agreed to between the parties that the sale transaction to be completed within three months, however, subject to the defendant fulfilling certain conditions mentioned in the Agreement of Sale, among which, the defendant getting

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the Khata Certificate of the schedule property transferred in his name to enable him to execute the registered Sale Deed in favour of the plaintiff was also one. Though the plaintiff was always ready and willing to perform his part of the contract, the defendant went on prolonging the matter on one pretext or the other. Having no other alternative, the plaintiff got issued a legal notice dated 11.08.2006 to the defendant calling upon him to perform his part of the promise. However, the defendant sent an untenable reply dated 28.08.2006. Left with no other option, the plaintiff instituted the present suit against the defendant seeking the relief of specific performance of the contract. In the alternative, the plaintiff sought for refund of an advance amount of `5 lakhs together with interest

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and also liquidated damages as agreed between the parties.

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In response to the summons served upon him, the defendant appeared through his counsel and filed his written statement. In his written statement, the defendant though admitted the Agreement of Sale entered

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into between him and the plaintiff wherein he was the vendor has also acknowledged the receipt of advance amount of sale consideration amounting to a sum of 5 lakhs from the plaintiff. However, he specifically denied that the plaintiff was ready and willing to perform his part of the contract. The defendant contended that the suit schedule site was allotted to him by Ex-Servicemen House Building Co-operative Society (hereinafter for brevity referred to as 'the Society'). The khata with respect to the said property was not yet transferred and made in the name of the defendant since there was a dispute between the Society and the Bengaluru Development Authority (hereinafter for brevity referred to as BDA'). He contended that in spite of his best efforts, he was unable to get the khata transferred in his name. The plaintiff had remained silent for more than two years, during which period, site has seen a steep increase in its market value. With this, he contended that he has suitably replied to the notice sent by the plaintiff and stated that he cannot perform his part of the contract

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since the Society has not issued khata in his name due to the pendency of the dispute between the Society and the BDA. With this, he submitted that he is ready and willing to return the advance amount to the plaintiff together with interest thereupon as may be ordered by the Court. He also contended that, in the event, the suit is decreed and specific performance of the contract is granted in favour of the plaintiff, he would be put to irreparable loss, hardship and injury. With this, he sought for dismissal of the suit with costs.

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Based on the pleadings of the parties, the trial Court framed the following issues for its consideration:

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

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2. Whether the defendant proves that suit of the plaintiff is not maintainable and thereby defendant be permitted to return the advance amount to the plaintiff together with interest?

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3. Whether this Court has no jurisdiction to try the suit?

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4. Whether the Court fee paid by the plaintiff is insufficient one?

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5. Whether the plaintiff is entitled to get decree as prayed for?

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4. To what Order or Decree?”

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In support of his plaint, the plaintiff got himself examined as PW-1 and one Sri Subramani was examined as PW-2 and got marked documents from Exs.P-1 to P-23.

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On behalf of the defendant, the defendant got himself examined as DW-1 and one Sri Shivakumar was examined as DW-2 and got marked documents from Exs.D-1 to D-4.

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After hearing both side, the trial Court by its impugned judgment and decree dated 08.06.2018, answering issue Nos.1, 3 and 4 in the negative, issue No.2 in the affirmative and issue No.5 partly in the affirmative, partially decreed the suit of the plaintiff by holding that the plaintiff is entitled for refund of advance sale consideration of `5,00,000/- from the defendant along with interest at 9% per annum from the date of Agreement of Sale till realisation and also held that the plaintiff is not entitled for liquidated damages as claimed.

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Being aggrieved by the same, the plaintiff-appellant has

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preferred the present appeal.

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The learned counsel for the appellant (plaintiff) and learned Senior Counsel appearing for the learned counsel for the respondent (defendant) are physically appearing before the Court.

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The trial Court records were called for and the same are placed before this Court.

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Heard the arguments of the learned counsels from both side and perused the material placed before this Court, including the memorandum of appeal, impugned judgment and the trial Court records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.

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Learned counsel for the plaintiff (appellant) in his argument submitted that even though the plaintiff has convincingly proved that he is always been ready and willing to perform his part of the contract, however, the trial Court has erred in observing that the plaintiff though

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had the sufficient funds in his bank, still has withheld the said amount, as such, he was not ready and willing to perform his part of the contract. Learned counsel submitted that the trial Court ignored the fact that even though the plaintiff was ready and willing, in which regard, he also got issued legal notice to the defendant, however, it was the defendant on the false pretext of khata with respect to suit property not having been transferred in his name, initially went on delaying the execution of the Sale Deed, however, later refused to perform his part of the contract.

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The learned counsel for the plaintiff/appellant further submitted that the trial Court held that because of the defendant could not get No Objection Certificate and khata, the performance of the Agreement of Sale has become improbable. The said finding of the trial Court is its assumption without any basis of the evidence in that regard. Learned counsel also submitted that the time was not the essence of contract since the very Agreement at Ex.P-1 itself keeps extending the time till the defendant

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get khata with respect to suit property. While concluding his argument, learned counsel submitted that, if the Court orders, the plaintiff is even ready to pay the alleged arrears of charges of a sum of `6,26,928/- which is said to be payable by the defendant towards the Society and also any reasonable extra amount if the Court finds that interest of justice would require the same.

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Learned Senior Counsel appearing for the learned counsel for the respondent/defendant in his argument submitted that the Agreement of Sale at Ex.P-1 in its Clauses and an endorsement dated 23.06.2005 shows that getting khata was obligatory on the part of the vendor i.e., the defendant. The notice at Ex.D-1 clearly mentions in it, that, khata is a requirement for the defendant executing the Sale Deed in favour of the plaintiff. Even in the reply to the said notice, which is at Ex.D-2, the defendant since has stated that the plaintiff can take back his money with interest, he has shown his inability to get khata. In the said circumstances, had the plaintiff was ready to get the Sale Deed executed without the khata, he should have

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mentioned the same in his plaint. On the other hand, the plaintiff as PW-1 also has shown that khata was a requirement by him for getting the Sale Deed executed. Undisputedly, a writ petition bearing Writ Petition No.40445/2014 was filed by the Society against the BDA challenging the BDA demanding huge amount of money towards betterment charges and the said writ petition was pending, as such, the defendant could not able to get the khata. Therefore, when getting the khata for the suit schedule site by the defendant was not happened, the plaintiff if was ready to purchase the property without Khata Certificate, should have pleaded the same in his plaint. Since there is no such pleading in his plaint, the plaintiff is not entitled for the relief of specific performance. In his support, learned Senior Counsel appearing for the learned counsel for the defendant relied upon a judgment of our Hon'ble Apex Court in K.Karuppuraj -vs- M.Ganesan, reported in (2021) 10 SCC 777.

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Learned Senior Counsel also relied upon another judgment of our Hon'ble Apex Court in Kamal Kumar -vsPremlata Joshi and others, reported in (2019) 3 SCC 704 and submitted that the Hon'ble Apex Court has laid down the principles to be followed in a suit for specific performance of the contract.

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Learned counsel for the plaintiff (appellant) in his reply arguments contended that in Karuppuraj's case (supra), the Hon'ble Apex Court has mainly dealt with the provision of Order LXI Rule 31 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as `CPC'), and discussed the procedure to be followed by the first Appellate Court in an First Appeal against a suit. Further, in the said case, readiness and willingness was not established, which differs in the case on hand since the plaintiff has shown his readiness and willingness by placing cogent evidence.

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In the light of the above, the points that arise for my consideration in this appeal are:

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i] Whether the plaintiff (appellant) has proved that he has always been ready and willing to perform his part of the contract?

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ii] Whether the contention of the defendant that not obtaining the khata for no fault of his is the reason for non-performance, is acceptable?

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iii] Whether the plaintiff is entitled for the relief of specific performance of the contract as prayed for?

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iv] Whether the impugned judgment and decree under consideration warrants any interference at the hands of this Court?

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The plaint averment that the plaintiff had entered

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into an Agreement of Sale dated 19.12.2004 with the defendant, agreeing to purchase the suit schedule property, which is a site, of which the defendant was the absolute owner in possession thereof, for a total sale consideration of a sum of 10,80,000/-, has been admitted by the defendant in his written statement. Similarly, the plaint averment that, as per the above stated Agreement of Sale, the plaintiff paid an advance sale consideration of a sum of 1 lakh by way of cheque to the defendant and after some time, he paid another sum of `4 lakhs as

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further advance towards sale consideration to the defendant on 23.06.2005 and thus, in total he has paid a sum of 5 lakhs to the defendant towards partial sale consideration keeping a balance of a sum of 5,80,000/only as the remaining quantum of consideration payable to the defendant at the time of execution of the Sale Deed, has also been admitted by the defendant in his written statement. Acknowledging the further advance of a sum of `4 lakhs, the defendant made an endorsement on the Agreement of Sale (as per Ex.P-1(a)) and also executed a sworn Affidavit (as per Ex.P-2), is also admitted by the defendant in his written statement.

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The evidence of the plaintiff as PW-1 and the

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evidence of PW2 the other witness from his side, who claims to be the witness to the sale transaction and by name Sri Subramani, are on the lines of the pleading to that extent. Similarly, the evidence of the defendant as DW-1 is also on the similar lines of his written statement.

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Thus, the admitted facts remain that the plaintiff

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and the defendant have entered into an Agreement of

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Sale on 19.12.2004, whereunder, the defendant agreed to sell the suit schedule property to the plaintiff for a consideration of a sum of `10,80,000/-, out of which, as

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on the date of filing of the suit, the plaintiff had paid and defendant had received a sum of `5 lakhs towards the partial sale consideration. However, the dispute between them is that, according to the plaintiff though he was ready and willing to perform his part of the contract, the defendant did not proceed to execute the Sale Deed in his favour despite his repeated request and demand made to the defendant. On the contrary, the contention of the defendant is that procuring the khata for the suit schedule property by the defendant before executing the Sale Deed in favour of the plaintiff was a necessary requirement as agreed to between them, however, the defendant despite his best efforts, could not get the khata from BDA, which later turned down to be an impossibility. Further, the plaintiff also has not shown his readiness and willingness to accept the execution of the Sale Deed without khata through his plaint, as such, the plaintiff has not been

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ready and willing to perform his part of the contract. Thus, at the maximum, the plaintiff is entitled for the refund of the advance amount paid by him, however, with a nominal interest on the said amount.

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Thus, the main question in this case would be, whether the defendant's securing khata to the suit schedule property was a condition necessarily to be complied with by the defendant under all circumstances and the non-fulfillment of the said condition was beyond the control of the defendant, as such, the defendant is exonerated and cannot be compelled to execute the Sale Deed in favour of the plaintiff. Since the plaintiff has not pleaded of his readiness to accept the Sale Deed without the khata, it is to be taken that the plaintiff was not ready and willing to perform his part of the promise under the contract.

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Our Hon'ble Apex Court in Kamal Kumar's case (supra), has mentioned what are all the material questions which are required to be gone into for grant of

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the relief of specific performance in Para-7 of its judgment, which reads as below :

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" 7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions which are required to be gone into for grant of the relief of specific performance are :

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7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.

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7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract.

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7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;

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7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff;

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7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds."

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Thereafter, the Hon'ble Apex Court in Para-8 of the very same judgment, proceeded to further observe as below :

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" 8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts."

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The learned Senior Counsel appearing for the learned counsel for the defendant in his argument submitted that, though the plaintiff claims that he was ready and willing to perform his part of the promise, however, about his readiness to accept the execution of the Sale Deed without there being a khata issued by BDA

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in that regard,there is no mention to that effect in the pleading, as such, he is not entitled for the relief of specific performance. In his support, he relied upon the judgment of Karuppuraj's case (supra), and drew the attention of this Court to Paragraphs-12, 13, 14 and 15 of the said judgment, which reads as below :

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" 12. It is required to be noted that as per the case of the original plaintiff, the defendant was required to evict the tenants and hand over the physical and vacant possession at the time of execution of the sale deed on payment of full sale consideration. Even in the suit notice issued by the plaintiff, the plaintiff called upon the defendant to evict the tenants and thereafter execute the sale deed on payment of full consideration from the plaintiff. Even when we consider the pleadings and the averments in the plaint, it appears that the plaintiff was never willing to get the sale deed executed with tenants and/or as it is. It was the insistence on the part of the plaintiff to deliver the vacant possession after evicting the tenants. Therefore, on the basis of the pleadings in the plaint and on appreciation of evidence, the learned trial court held the issue of willingness against the plaintiff. However, before the High Court, the plaintiff filed an affidavit stating that he is now

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ready and willing to get the sale deed executed with respect to the property with tenants and unfortunately, the High Court relying upon the affidavit in the first appeal considered that as now the plaintiff is ready and willing to purchase the property with tenants and get the sale deed executed with respect to the property in question with tenants, the High Court has allowed the appeal and decreed the suit for specific performance.

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13. The aforesaid procedure adopted by the High Court relying upon the affidavit in a first appeal by which virtually without submitting any application for amendment of the plaint under Order 6 Rule 17 CPC, the High Court as a first appellate court has taken on record the affidavit and as such relied upon the same. Such a procedure is untenable and unknown to law. First appeals are to be decided after following the procedure to be followed under the CPC. The affidavit, which was filed by the plaintiff and which has been relied upon by the High Court is just contrary to the pleadings in the plaint. As observed hereinabove, there were no pleadings in the plaint that he is ready and willing to purchase the property and get the sale deed executed of the property with tenants and the specific pleadings were to hand over the peaceful and vacant possession after getting the tenants evicted and to execute the sale deed. The proper procedure would have been for the plaintiff to move a proper

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application for amendment of the plaint in exercise of the power under Order 6 Rule 17 CPC, if at all it would have been permissible in a first appeal under Section 96 read with Order 41 CPC. However, straightaway to rely upon the affidavit without amending the plaint and the pleadings is wholly impermissible under the law. Therefore, such a procedure adopted by the High Court is disapproved.

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14. The learned trial court held the issue of willingness against the plaintiff by giving cogent reasons and appreciation of evidence and considering the pleadings and averments in the plaint. We have also gone through the averments and the pleadings in the plaint and on considering the same, we are of the opinion that the learned trial court was justified in holding the issue of willingness against the plaintiff. The plaintiff was never ready and willing to purchase the property and/or get the sale deed executed of the property with tenants. It was for the first time before the High Court in the affidavit filed before the High Court and subsequently when the learned trial court held the issue of willingness against the plaintiff, the plaintiff came out with a case that he is ready and willing to purchase the property with tenants. For the purpose of passing the decree for specific performance, the plaintiff has to prove both the readiness and willingness. Therefore, once it is

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found on appreciation of evidence that there was no willingness on the part of the plaintiff, the plaintiff is not entitled to the decree for specific performance. Therefore, in the present case, the learned trial court was justified in refusing to pass the decree for specific performance.

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15. The submission on behalf of the plaintiff that in the agreement a duty was cast upon the defendant to evict the tenants and to handover the vacant and peaceful possession, which the defendant failed and, therefore, in such a situation, not to pass a decree for specific performance in favour of the plaintiff would be giving a premium to the defendant despite he having failed to perform his part of the contract. The aforesaid seems to be attractive but for the purpose of passing a decree for specific performance, readiness and willingness has to be established and proved and that is the relevant consideration for the purpose of passing a decree for specific performance."

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In the instant case, the plaintiff has reiterated

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the summary of his plaint even in his evidence as PW-1 in his examination-in-chief. In his cross-examination, he has

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admitted a suggestion as true that, as on the date of Agreement of Sale, the khata of the suit schedule property

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was not yet transferred to the defendant. He also stated

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that, within the agreed time of three months from the date of Agreement of Sale, he has not issued any notice to the defendant stating that he has been ready and willing to perform his part of the promise by getting the Sale Deed executed in his favour nor he sent any draft Sale Deed to the defendant. This was one of the point which the trial Court in its impugned judgment has observed to arrive at a finding that the plaintiff has not shown his readiness and willingness to perform his part of the promise under the contract. However, the trial Court failed to notice that the very same defendant as a vendor had executed an Affidavit as per Ex.P-2 accepting further part consideration of the sale value of a sum of 4 lakhs, which is after the period mentioned in Agreement of Sale at Ex.P-1. The receipt of the said amount of 4 lakhs was acknowledged through an Affidavit at Ex.P-2 on 23.06.2005.

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Added to the same, an endorsement at Ex.P-1(a)

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also reiterates the receipt of the said amount of `4 lakhs

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as further advance amount by the defendant on 23.06.2005. In the very same endorsement at Ex.P-1(a),

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it is also shown that the defendant has stated that he was

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not able to execute the Sale Deed within the stipulated time for want of Khata Certificate to be issued by the BDA and site to be released by the BDA. He has further stated that, on the said day, he has given to the plaintiff the originals of the Sale Deed, Possession Certificate, Encumbrance Certificate, all other receipts, such as water charges, electricity charges, BDA charges etc., and again promised that as soon as he get khata from the BDA and the Society, he will execute the Sale Deed and receive the balance sale consideration. Those original documents, which are the Sale Deed, Possession Certificate, two Encumbrance Certificates, receipts towards payment made by the defendant to the Society towards share amount and sital advance amount, counterfoil of a Bank challan, electrification, UGD charges, water charges, asphalting and other charges shown to have been paid by the

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defendant to the Society, are all marked as Exhibits from Exs.P-3 to P-13.

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The evidence of PW-2 also mentions that the defendant after receiving the said sum of `4 lakhs from

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him as a nominee of the plaintiff, has made an endorsement as per Ex.P-1(a) and handed over all those original documents. The evidence of PW-1 and PW-2 on this point has not been denied or disputed from the defendant's side. On the other hand, even the defendant as DW-1 also has acknowledged the receipt of said further advance amount of `4 lakhs on 23.06.2005 and handed over the above mentioned original documents to the plaintiff. In his cross-examination, the defendant also admitted as true that, in the endorsement at Ex.P-1(a), he has undertaken that he would execute the Sale Deed

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after getting the khata in his name.

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Therefore, both the parties have agreed to extend the time for performance of the contract till the defendant executes the Sale Deed after getting khata transferred or made in his name. In the said

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circumstances, the plaintiff giving any notice to the defendant calling upon him to execute the Sale Deed within the original period of three months or getting the Sale Deed executed within two years from the date of the original agreement does not arise.

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The trial Court further observed that the plaintiff

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was not ready and willing to perform his part of the contract since the Bank Passbook and statement of account produced by the plaintiff was standing in joint name and he has not produced any document to show that the other joint account holders had no objection for payment of amount to the defendant. In that connection, the trial Court observed that Exs.P-14 to P-16, which are the Post Office Passbooks, which indicates a deposit of a sum of `3 lakhs, but, in the joint name of Smt.K.S.Rathna Murthy, Smt.Poornima Shrinivas Murthy and Sri K.Shrinivas Murhty, the plaintiff herein. The trial Court observed that the plaintiff has not chosen to examine those joint account holders to show that they had their consent to part with the said amount to pay the balance

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sale consideration. The same observation was made with respect to Ex.P-22, which is the certified copy of the Bank Passbook of Smt.Poornima Srinivasa Murthy, which indicates sufficient balance in her account and Ex.P-23, which is the certified copy of the Bank Passbook of Smt.Nagarathna Murthy, which also had balance in her account at the relevant period. However, the very same trial Court at more than one place has observed in the very same Paragraph No.9 of its judgment that Ex.P-21 is the certified copy of the Bank Passbook of the plaintiff with the State Bank of India, which indicates the availability of sufficient balance in the account of the plaintiff from the year 2002 to 2010.

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Admittedly, the date of agreement and subsequent endorsement were all of the year 2004 and 2005. As such, at the relevant point of time, when the defendant was expected and required to perform his part of the promise, the plaintiff had sufficient balance in his account, including on the date of filing of the Original Suit, which was in the year 2007. Therefore, economically the

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plaintiff has shown that from the date of the agreement, till the date of filing of Original Suit and even thereafter, he had sufficient balance in his account to pay the balance of sale consideration to the defendant, provided the defendant executed the Sale Deed in his favour. Thus, the observation of the trial Court about the availability of the funds in the account of the plaintiff, which is uncertain and speaks other way, is clarified and it is established that the plaintiff had sufficient funds with him to pay the balance amount of sale consideration to the defendant.

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The trial Court also observed that, generally speaking it was for the purchaser to approach the vendor and request him to execute the Sale Deed, as such, it was obligatory on the part of the plaintiff to approach the defendant asking him to execute the Sale Deed instead of waiting for a long time till the notice at Ex.D-1 was sent by him to the defendant on 11.08.2006. In that regard, the important clauses in the Agreement of Sale, which are Caluse-4, Clause-5 and Clause-11, are required to be seen. They read as below :

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" Clause-4 : The vendor shall complete the sale in favour of the purchaser herein or his nominee on or before 3 months from the date of this agreement and relevant conveyance shall be executed by the vendor in favour of the purchaser herein or his nominee.

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Clause-5 : The VENDOR and the PURCHASER have mutually agreed to extend the period of performance of this agreement by 3 (three) months, if the getting the Khata of the property delayed, since it has to be done by the Vendor's Vendor i.e The Ex-Servicemen House Building Co-op Society.

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Clause-11 : It is agreed that, if the vendor fails to comply with all or any of the conditions of this agreement, the purchaser shall at his option has the right to sue for specific performance of the agreement or to recover advance money paid with interest at the rate of 18% per annum paid this day towards the sale consideration and with liquidated damages of Rs.10,000.00 (Rupees Ten thousand only). If the purchaser fails to perform his part of the contract the vendor at his option is entitled to sue for specific performance of the agreement and also ask for liquidated damages of Rs.10,000.00 (Rupees Ten thousand only)."

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A reading of Clause-4 of the Agreement of Sale

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makes it mandatory on the part of the vendor i.e., the defendant to complete the sale in favour of the purchaser i.e., the plaintiff or his nominee, within the stipulated period and to execute a conveyance in favour of the purchaser or his nominee. Thus, it was explicitly agreed between the parties that it was for the vendor i.e., the defendant to complete his part of the promise, which implies that, when the plaintiff approaches him, he should have shown to the plaintiff that he was ready in all respects to execute a conveyance to the plaintiff, provided the plaintiff is ready to pay the balance amount to him.

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Clause-3 of the same agreement has casted an obligation on the vendor (defendant) to make out a good and marketable title in respect of the suit schedule property and perform the other terms of the agreement. Therefore, at more than one place, it has been shown that, it was for the defendant to show his part of

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preparedness to keep the property ready to execute a conveyance in favour of the plaintiff before receiving the

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balance sale consideration. However, admittedly till date, the defendant has not come up with the Khata Certificate issued, whether by the Society or by the BDA. As such, the observation by the trial Court that obligation was only on the part of the plaintiff, is also not acceptable. This leads us to the aspect of considering the non-availability of khata and whether it exonerates the defendant from executing the Sale Deed in favour of the plaintiff.

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According to the learned counsel for the plaintiff (appellant), the plaintiff was not aware about the dispute between the Society and the BDA and factually no litigation was pending between them as on the date of the Agreement, as well on the date of filing of the suit, however, it is only later in the year 2014, the alleged writ petition in Writ Petition No.20445/2014 was said to have been filed by the Society against the BDA and others. The undue advantage of the same was taken by the defendant somehow to avoid his liability and obligation to execute the Sate Deed in favour of the plaintiff. As such, the plaintiff even today is ready to get the Sale Deed

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executed in his name irrespective of the defendant not obtaining khata of the suit schedule property in his name. The learned counsel further volunteered to say that the

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alleged arrears payable to the Society amounting to `6,26,928/- would also be paid by the plaintiff.

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Per contra, learned Senior Counsel appearing for the learned counsel for the respondent/defendant contended that the said submission that the plaintiff is ready to accept the execution of the Sale Deed without the khata has not been stated in the pleading by the plaintiff, as such, it falls short of proving the readiness and willingness. It is in that connection, learned Senior Counsel for the defendant has relied upon the judgment in Karuppuraj's case (supra).

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No doubt, in the Karuppuraj's case (supra),

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though primarily the Hon'ble Apex Court has discussed the scope of Order LXI Rule 31 of CPC and the procedure to be followed by a Court dealing with First Appeal upon a judgment and decree passed in a suit, at the same time, has also considered the merits of the appeal. In the said

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case, noticing that the plaintiff in the plaint had averred that the defendant had to evict the tenants and perform his part of the contract before executing the Sale Deed in favour of the plaintiff and that during the pendency of the appeal in the High Court, plaintiff filed an affidavit stating that he would accept the possession of the property under sale though it is in occupation by the tenant, was pleased to observe that, the same would not constitute of proving readiness and willingness by the plaintiff since the said acceptability of the property, though in the possession of the tenants, was not pleaded in the plaint.

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In the instant case, a careful perusal of the pleadings and the evidence of both side reveals the below:

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(i) Clause-3 of the Agreement of Sale at Ex.P-1 shows that it is for the defendant(vendor) to make out a good and marketable title in respect of the suit schedule property and perform other terms of the agreement. Thus, it was for the defendant to keep the property with marketable title.

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Clause-5 of the same Agreement mentions that the

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vendor (defendant) was also under an obligation to get the khata of the property. However, it mentions that getting

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the khata of the property has to be done by the Vendor's Vendor i.e., the Society, that means, the obligation was upon the Society than the defendant. However, the defendant in his reply to the notice at Ex.D-2 and dated 28.08.2006, has in Para-5 stated that, though he (the defendant) has paid the entire amount to Society, the khata of the said site No.212 could not be made available to him since the same has not been released by the BDA

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as the Society was due to pay more than `2 Crores to the BDA. Thus, at the earliest point of time, through Ex.D-2, the defendant contended that he has no liability towards

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the Society in any manner and if at all any fault is there, that is by the Society and by the BDA. The same thing has been repeated even in his written statement also.

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Thus, the plaintiff at the time of filing the plaint and

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even after receiving the copy of the written statement was under an impression that defendant has cleared his

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liability, if any, towards the Society and that the Society is still expected to issue khata to him. For that matter, the issuance of khata was shown as a duty of the Society by the defendant both in the reply to the notice at Ex.D-2 and in his written statement.

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(ii) Point No.(i) above shows that, as on the date of entering into an Agreement of Sale as per Ex.P-1 on 19.12.2004, the defendant was claiming that he does not have khata in his name with respect to suit schedule property and the same has to be issued by or by the involvement of the Society.

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(iii) Before entering into an Agreement of Sale as per Ex.P-1 with the plaintiff, the defendant should have known whether he could able to get the khata instead of simply promising that he would keep the property making out a good and marketable title, including obtaining the khata. As such, any problem for getting the khata done or of any dispute between the Society and BDA, he should have ascertained before entering into an Agreement of Sale at

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Ex.P-1, which was possible for the vendor to ascertain. Admittedly, the alleged writ petition is nearly ten years after the Agreement of Sale.

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(iv) In spite of knowing that he has no khata in his name with respect to suit schedule property, since the defendant has entered into an Agreement of Sale as per Ex.P-1, it means that, he was sure of getting the khata which he has undertaken to show it to the plaintiff.

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(v) The defendant being the member of the Society, he was allotted with the suit schedule property, it was his obligation and duty to ensure that he gets khata before he enters into an Agreement of Sale with anyone, including the plaintiff. However, the defendant did not do any effort in that regard as no evidence either oral or documentary

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has been placed by him to show otherwise. Thus, it is only when DW-2, the Secretary of the Society entered the witness box and gave evidence to the effect that, as per the Bye-law of the Society, the members have to pay all charges payable to the Society to obtain No Objection Certificate (for short NOC') for issuing khata by the BDA and the defendant has to pay a total sum of 6,26,928/-

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to the Society, and hence the Society has not issued NOC to the defendant, the plaintiff came to know that the defendant is due for a sum of 6,26,928/- to the Society as on the date of evidence of DW-2. As such, the Society has not issued NOC to the defendant, in turn, due to the non-availability of the NOC, the defendant could not get the khata made in his name. The said evidence of DW-2 that the defendant was due to the Society a sum of 6,26,928/- and it is only thereafter, the Society would issue NOC to the defendant which enables him to get the khata, has not been denied or disputed by the defendant.

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(vi) The above fact that the defendant was due to the Society of the payment of a sum of `6,26,928/-, as such, the process towards getting khata was stalled, was not to the knowledge of the plaintiff till DW-2 entered the witness box and gave his evidence. Till then, the plaintiff believed the representation of the defendant made in his reply to the notice at Ex.D-2 and also in his written statement that the defendant has paid all the charges payable to the Society and that he has got no due or liability towards

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the Society. Under the said circumstances, it cannot be expected that the plaintiff should have anticipated the problem for not issuing the NOC or khata in favour of the defendant and mentioned in his pleading that he was ready to accept the execution of the Sale Deed without khata. Thus, there is suppression from the defendant's side to the plaintiff at the time of executing not only the Agreement of Sale at Ex.P-1, but, also the Affidavit as per Ex.P-2 and endorsement as per Ex.P-1(a), which made the plaintiff to honestly believe that defendant was with clean hand and he is not the one to be blamed.

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However, the above analyses has revealed that conduct of the defendant was blameworthy, but, not of the plaintiff as observed by the trial Court. It is because of suppression of a material fact by the defendant, the plaintiff was prevented from mentioning in his pleading that he was ready to accept execution of the Sale Deed in the absence of khata. Thus, the facts and circumstances of the case keeps the present case distinct from the

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observation made by the Hon'ble Apex Court in

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Karuppuraj's case (supra).

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In addition to the above, if at all the BDA is refusing to do favour to the Society for the alleged arrears

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by the Society to it running into few Crores, the same would not give any benefit to the defendant, for the reason that, if at all the Society, is required to pay any amount to the BDA, then, the Society should get that amount from its members as per the Rules and its Bye-laws. However, in the instant case, as the Secretary of the Society has stated in his evidence as DW-2, which has remained undenied by the defendant, the defendant himself is due to the Society a sum of `6,26,928/-.

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Further, it was suggested by defendant himself to

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PW-1 in his cross-examination that, from the year 1993, the defendant has not paid tax towards the suit schedule

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site. Thus, from the date of registration of the Sale Deed

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of the site in his favour by the Society, the defendant has not paid the tax payable by him towards the suit schedule

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property. In this way, it is the defendant who has at several stages committed defaults and suppressed all those material facts from coming to the notice of the plaintiff and later has attempted to show the cause of alleged dispute between the Society and BDA only to avoid his obligation to execute the Sale Deed in favour of the plaintiff. Thus, it is the defendant whose conduct is blameworthy, but, not of the plaintiff.

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It is in the above circumstances, when the defendant himself is the party at fault and is attempting to encash the benefit of his fault to avoid his obligation to execute the Sale Deed in favour of the plaintiff and to retain the suit schedule property since the said property is said to be getting more market value now, the act of the defendant cannot be acceptable and the plaintiff cannot be said to be not ready and willing to perform his part of the promise under the contract. Hence, finding of the trial Court that the plaintiff has failed to prove that he was ready and willing to perform his part of the contract is not an appropriate finding and its finding should have been

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otherwise. Therefore, it is held that the plaintiff has proved that he is always ready and willing to perform his part of the promise under the contract.

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The granting of relief of specific performance is discretionary. In the instant case, the plaintiff through his pleading and evidence shown that he does not own any residential site or a residential house in and outside the Bengaluru City and that he has invested his savings to purchase a residential site in Bengaluru, which is the suit schedule property. Thus, he has shown the hardship that would be caused to him in case the relief of specific performance is denied to him. The defendant except stating that, in the event the specific performance is ordered, he would be put to irreparable loss and injury, has not come up with any corroboration to substantiate his contention. When the defendant has agreed to sell the suit schedule property in favour of the plaintiff for a valuable consideration, by that itself, he was aware that by selling the suit schedule property, he would not be put to irreparable injury or hardship. Further, he has also not

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shown as to what hardship he would suffer in the event

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the specific performance is ordered in favour of the plaintiff. As such, the greater hardship would be caused to the plaintiff than the defendant in case if the relief of specific performance is not granted in favour of the plaintiff.

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The evidence led before the Court does not show that to execute a registered Sale Deed, obtaining khata of the subject property was inevitable. DW-2, the Secretary of the Society himself has stated in his evidence that the member of the Society/allottee of the site is not supposed to sell the property without obtaining No Objection Certificate from the Society, however, as shown in the certified copy of the Sale Deed at Ex.P-20, a site has been sold. DW-2 has stated that without their notice and without transfer of khata, sites are being sold. Thus, the defendant cannot use transferring of khata in his name as a shield, on the other hand, after paying the dues, if any, to the Society, he can obtain No Objection

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Certificate and proceed with the execution of the Sale Deed in favour of the plaintiff.

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In the above circumstances, though the

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defendant is liable to execute a Sale Deed and register it in favour of the plaintiff or his nominee as per the Agreement of Sale at Ex.P-1, still, considering the fact that admittedly the market value of the suit schedule property must have been increased during the pendency of the suit and also the voluntary submission made by the learned counsel for the plaintiff that the plaintiff would pay the alleged arrears of `6,26,928/- to the Society only to ensure that the plaintiff gets suit schedule site at the earliest, so that, he can build a house for his residence upon it, I am of the view that, interest of justice warrants the consideration of the same.

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As such, I am of the view that to do complete justice, if the plaintiff is directed to pay a further sum of 20 lakhs, which is inclusive of 5,80,000/-, towards the

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balance of sale consideration and a sum of `6,26,928/- or that amount which is due by the defendant towards the

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Society, to the defendant, the same would meet the ends of justice.

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Our Hon'ble Apex Court in Basavaraj -vsPadmavathi and another, reported in AIR 2023 SC 282, has arrived at such a finding. In the said case, in order to do complete justice, the Hon'ble Apex Court directed the plaintiff to pay a further sum of `10 lakhs towards the sale consideration therein.

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For the above reasons, the points under consideration are answered accordingly and I proceed to pass the following order :

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ORDER

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[i] The Regular First Appeal filed by the

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plaintiff (appellant) is allowed ;

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[ii] The impugned judgment and decree dated 08.06.2018, passed by the learned Prl.Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S.No.442/2007, stands set aside.

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[iii] The suit of the plaintiff in

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O.S.No.442/2007 stands decreed.

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[iv] The defendant is hereby directed to perform his part of the contract dated 19.12.2004 as per Ex.P-1 and Endorsement dated 23.06.2005 as per Ex.P-1(a) by executing an absolute registered Sale Deed in favour of the plaintiff within four months from today and put the plaintiff in exclusive possession of the suit schedule property by collecting a sum of 20,00,000/- (Rupees Twenty Lakhs only) from the plaintiff, which is inclusive of the balance sale consideration of a sum of 5,80,000/(Rupees Five Lakhs Eighty Thousand only) and any such amount due to the Society by the defendant towards the suit schedule property, failing which, the office of the trial Court to execute an absolute Sale Deed in favour of the plaintiff with respect to suit schedule property with possession to the plaintiff.

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However, the plaintiff would be at liberty

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to ascertain from the defendant about the arrears due by the defendant to the Society and

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pay the said sum directly to the Society on behalf of the defendant and deduct the said amount payable to the defendant from out of the sum of `20 lakhs mentioned above.

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[v] The defendant shall co-operate with

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the plaintiff in ascertaining the due, if any, payable to the Society, within one month from today without anticipating any request by the plaintiff in that regard.

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[vi] Any increase or decrease in the amount payable to the Society by the defendant would not alter the liability of the plaintiff in paying a total sum of `20 lakhs to the defendant, which is inclusive of original balance sale consideration and amount due by the defendant to the Society.

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