Allowed

N. Chandrashekar v. S. Dharnesh

Karnataka HC16 Nov 2023RFA/832/2016

Case brief

AI extract

What is this about?

First appeal by an unsuccessful plaintiff against the dismissal of a suit for specific performance. The High Court allowed the appeal, setting aside the impugned judgment as the Trial Court erred in finding the suit barred by limitation and in not appreciating unchallenged evidence of readiness and willingness.

What did the court decide?

The appeal was allowed; the impugned judgment and decree were set aside; the suit for specific performance was decreed.

N. Chandrashekar Vs S. Dharnesh — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC:41106 RFA No. 832 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.832 OF 2016 (SP)

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BETWEEN:

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N. CHANDRASHEKAR S/O RANGASWAMY NAIDU AGED ABOUT 41 YEARS, RESIDING AT NO.1224/16, KOGILU MAIN ROAD, BHADRANNA LAYOUT, MARUTHINAGARA, YALAHANKA BANGALORE-560 064.

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…APPELLANT

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(BY SRI. L S VENKATAKRISHNA, ADVOCATE) AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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S. DHARNESH S/O LATE SIDDALINGAPPA AGED ABOUT 45 YEARS, RESIDING AT ANCHEHALLI VILLAGE KORA HOBLI, TUMKUR TALUK & DISTRICT-572 101.

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…RESPONDENT

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(RESPONDENT IS SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.02.2016 PASSED IN O.S.NO.132/2014 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT INJUNCTION.

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

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NC: 2023:KHC:41106 RFA No. 832 of 2016

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JUDGMENT

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This appeal by the unsuccessful plaintiff in O.S.No.132/2014 is directed against the impugned judgment and decree dated 08.02.2016 passed by the Addl. Senior Civil Judge & CJM, Tumakuru, whereby the said suit filed by the appellant – plaintiff against the respondent – defendant for specific performance of a Sale Agreement dated 29.05.2009 executed by the defendant in favour of the plaintiff in relation to the suit schedule immovable property and other reliefs was dismissed by Trial Court.

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Heard learned counsel for the appellant and perused the material on record. The respondent having been served with notice of the appeal has chosen to remain unrepresented and has not contested the appeal.

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The material on record discloses that the appellant – plaintiff instituted the aforesaid suit for specific performance of a Sale Agreement dated 29.05.2009 said to have been executed in his favour by the respondent for a total sale consideration of Rs.13,00,000/-. It was contended that as per the agreement, the plaintiff paid a sum of Rs.12,00,000/- to the defendant towards advance and part of the sale consideration and the balance would

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be paid at the time of execution and registration of the Sale Deed. It was further contended that though the Sale Agreement stipulated that the sale transaction would be completed on or before 31.07.2010, since the defendant did not perform his part of the contract nor discharge his obligations and execute a registered Sale Deed in favour of the plaintiff, the defendant executed endorsements / sharas on 31.07.2010, 29.07.2011 and 05.07.2012 whereby the time fixed for completion of the sale transaction was extended by a period of one year from 31.07.2012. Plaintiff contended that since the defendant did not take necessary steps to perform his part of the contract and execute a registered Sale Deed in favour of the plaintiff, he got issued legal notices dated 08.08.2013 and 23.09.2013 calling upon the defendant to receive the balance sale consideration and execute the Sale Deed in his favour. It was contended that despite having received the said Legal Notices which were sent by RPAD, the defendant did not come forward to execute the Sale Deed, as a result of which, the plaintiff instituted the instant suit on 16.04.2014 interalia contending that he was always ready and willing to perform his part of the contract and was accordingly entitled to the relief of specific performance and other reliefs sought for by him.

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4. The defendant remained ex-parte in the suit and

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neither contested the same nor cross-examined the plaintiff and his witnesses or adduce any defence evidence. The plaintiff examined himself as PW1 and Exhibits P1 to P11 were marked and two witnesses to the Sale Agreement and the endorsements / sharas were also examined as PW2 and PW3. The Trial Court framed the following points for consideration:

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(i) Whether the suit is in time?

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(ii) Whether the plaintiff is entitled for the relief of Specific Performance and Permanent Injunction as sought for?

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(iii) What order?

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The Trial Court came to the conclusion that though the plaintiff had proved the execution of the Sale Agreement at Ex.P1 dated 29.05.2009, the endorsements / sharas at Ex.P2 dated 31.07.2010, Ex.P3 dated 29.07.2011 and Ex.P4 dated 05.07.2012 had not been established by him and since the time fixed for performance of the contract as per the Sale Agreement at Ex.P1 dated 29.05.2009 expired on 31.07.2010, the suit for specific performance filed on 16.04.2014 after more than three years was barred by limitation under Article 54 of the Limitation Act. While

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arriving at the said conclusion, the Trial Court did not accept the evidence of the plaintiff – PW1 and witnesses – PW2 and PW3 though they were not cross-examined by the defendant. Further, the Trial Court came to the conclusion that the plaintiff had not established readiness and willingness to perform his part of the contract and was consequently, not entitled to the discretionary and equitable relief of specific performance and accordingly, passed the impugned judgment and decree dismissing the suit, aggrieved by which the appellant is before this Court by way of the present appeal.

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As stated supra, the respondent – defendant not only remained ex-parte in the suit before the Trial Court but has also not entered appearance in the present appeal despite notice having been served upon him and has chosen to remain unrepresented.

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The only point that arises for consideration in the present appeal is as to whether the Trial Court was justified in dismissing the suit filed by the appellant – plaintiff.

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A perusal of the material on record will indicate that the specific contention urged by the appellant as regards execution of the Sale Agreement, payment of sale consideration, execution of

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NC: 2023:KHC:41106 RFA No. 832 of 2016

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endorsements / sharas, readiness and willingness, issuance of legal notices to the respondent by RPAD, to which there were no replies, etc., had obviously not been controverted by the respondent – defendant, who had remained ex-parte in the suit and had not contested the suit. So also, the oral and documentary evidence of the plaintiff and his two witnesses, PW2 and PW3 as regards all the aforesaid aspects including the execution of the endorsements / sharas by the defendant which extended the period of limitation upto 31.07.2012 for completion of the sale transaction had also not been impeached, challenged or controverted by the defendant, who had also not adduced any defence evidence.

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Under these circumstances, in the light of the unimpeached, uncontroverted and unchallenged pleadings and evidence of the plaintiff and his witnesses on various aspects of the matter including the extension of time upto 31.07.2012 for completion of the sale transaction is sufficient to show / indicate that the Trial Court completely misdirected itself in coming to the erroneous conclusion that the suit was barred by limitation; the findings recorded by the Trial Court that the suit was barred by limitation are not only capricious and perverse but the same are

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based on surmises and conjectures and contrary to the material on record warranting interference by this Court in the present petition, especially when the Trial Court has accepted the contention of the appellant – plaintiff as regards execution of the Sale Agreement and payment of substantial sale consideration of Rs.12,00,000/from out of a total sale consideration of Rs.13,00,000/-. Under these circumstances, I am of the considered opinion that the findings recorded by the Trial Court that the suit was not in time and barred by limitation is erroneous and unsound and the same deserves to be set aside.

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A perusal of the impugned judgment and decree will indicate that the Trial Court has held that the plaintiff was not ready and willing to perform his part of the contract and was not entitled to the relief of specific performance. In this context, as stated supra, in addition to the fact that the Trial Court failed to consider and appreciate the pleadings and evidence of the plaintiff which had remained unchallenged and unimpeached by the defendant, having come to the conclusion that the appellant - plaintiff had paid a substantial sum of Rs.12,00,000/- from out of total sale consideration of Rs.13,00,000/- to the defendant coupled with the

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subsequent endorsements / sharas executed by the defendant extending the period / time for completion of the sale transaction upto 31.07.2012 and the non-compliance by the defendant to the legal notices dated 08.08.2013 and 23.09.2013 and institution of the suit within a short period thereafter on 16.04.2014 which had not been rebutted by the defendant by way of any pleadings or evidence whatsoever, the findings recorded by the Trial Court on point No.2 are also perverse, capricious and contrary to the material on record and the same deserve to be set aside.

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Upon re-appreciation, re-evaluation and re-

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consideration of the entire material on record, I am of the considered opinion that the Trial Court committed a grave and serious error of law and fact in dismissing the suit filed by the plaintiff by improper and erroneous appreciation of the pleadings and evidence on record and consequently, the impugned judgment and decree deserves to be set aside and the suit of the plaintiff

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deserves to be decreed in his favour.

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In the result, I pass the following:

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ORDER

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(i) The appeal is hereby allowed .

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NC: 2023:KHC:41106 RFA No. 832 of 2016

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(ii) The impugned judgment and decree dated 08.02.2016 passed in O.S.No.132/2014 by the Addl. Senior Civil Judge & CJM, Tumakuru, is hereby set aside.

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(iii) The suit of the plaintiff is decreed as prayed for.

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Sd/JUDGE

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DHA / SV List No.: 1 Sl No.: 50

N. Chandrashekar v. S. Dharnesh

Case brief

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N. Chandrashekar v. S. Dharnesh

Case brief

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