Partly allowed

P Ragini v. M M Ananthamurthy

Karnataka HC1 Dec 2023RFA/871/2008

Case brief

AI extract

What is this about?

Appellant appealed the dismissal of her suit for specific performance of a 1992 agreement to sell property. The High Court held the appellant failed to prove readiness and willingness to pay the full consideration. It enhanced the interest rate on refund of advance from 6% to 12%.

What did the court decide?

Maintained the refund decree of Rs.4,50,000 but enhanced interest rate from 6% per annum to 12% per annum.

P Ragini Vs M M Ananthamurthy — Specific Performance | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 1^ST DAY OF DECEMBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE V SRISHANANDA

¶7

REGULAR FIRST APPEAL NO. 871 OF 2008 (SP)

¶8

BETWEEN:

¶9

P.RAGINI, W/O P. PADMANABHAN, AGED ABOUT 49 YEARS, R/O IST CROSS, 35/10, MODEL COLONY, YESWANTHAPUR, BANGALORE - 560 032.

¶10

…APPELLANT

¶11

(BY SRIVISHNU HEGDE, ADVOCATE)

¶12

AND:

¶13

Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

¶14

M.M.ANANTHAMURTHY, S/O MAHANEERASA, MAJOR, NO 73/1, 1ST 'N' BLOCK, RAJAJINAGAR, BANGALORE - 560 010. …RESPONDENT (BY SRI.N.S.NARASIMHA SWAMY, ADVOCATE) ***

¶15

(BY SRI.N.S.NARASIMHA SWAMY, ADVOCATE)

¶16

THIS RFA IS FILED U/S 96 OF THE CPC AGAINST THE JUDGEMENT AND DECREE DATED.07.03.2008 PASSED IN O.S.NO.6151/1994 ON THE FILE OF THE VTH ADDL. JUDGE, CITY CIVIL COURT, BANGALORE, DISMISSING THE SUIT FOR SPECIFIC PEROFRRMANCE.

¶17

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

¶18

2 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶19

JUDGMENT

¶20

Present appeal is filed by the plaintiff being not satisfied with the judgment and decree dated 07.03.2008 passed in O.S.No.6151/1994 on the file of the V Additional City Civil Judge, Bangalore City (CCH-13).

¶21

Parties are referred to as plaintiff and defendant for the sake of convenience as per their original ranking before the Trial Court.

¶22

Brief facts of the case which are utmost necessary for disposal of the appeal are as under:

¶23

Plaintiff filed a suit for specific performance with the following prayer:

¶24

"1. Wherefore, the appellant respectfully prays that this Hon'ble Court be pleased to set-aside the judgment and decree dated 07.03.2008 passed in O.S.No.6151/1994 on the file of V Additional City Civil Judge (CCH-13) Bangalore. So far as it relates to grant of specific performance of the agreement dated 05.05.1992 between the appellant and respondent by decreeing the suit as prayed for granting Specific performance as the agreement reconveyance regarding the suit property.

¶25

The appellant also prays for passing costs and other relief deemed to fit to grant under the circumstances, in the interest of justice."

¶26

3 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶27

It is the case of the plaintiff that property bearing No.35/10 measuring East to West 40ft. and North to South 85 ft. situated at 1st cross, Model Colony, Yeshwanthapur, Bangalore City (hereinafter referred to as suit schedule property), which was agreed to be sold by the defendant to plaintiff by entering into an agreement on 05.05.1992. It is further case of the plaintiff that despite plaintiff was ready and willing to perform her portion of contract and also having paid sum of Rs.4,50,000/- as advance sale consideration, defendant failed to execute the sale deed. Left with no other alternative, plaintiff was constrained to file the suit for specific performance of enforcement of the contract of agreement to sell dated 05.05.1992 with the aforesaid prayer.

¶28

Further, plaintiff contended that Smt.Karthiayani Amma, who was the absolute owner of the property having purchased the same under registered sale deed dated 18.11.1964 from Sri.C.Mark. Said Smt.Karthiayani Amma, was the mother of plaintiff who is no more. In the year 1965 - 1966, said Smt.Karthiayani Amma had constructed two A.C.C. sheet roofed tenements in the plinth area of about 51 ft. x 10 ft. for the residence of the family including plaintiff's uncle -

¶29

4 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶30

Sri.P.Kumaran Nair with his wife and children. In the year 1973, mother of the plaintiff constructed ground floor and main house in plinth area of East to West 40 ft. and North to South 12 ft. and shifted the residence from the sheets tenements. But Sri.P.Kumaran Nair continued to occupy one tenement and other tenement was occupied for the tenants.

¶31

In the year 1974, plaintiff's mother further constructed first floor on the main building with R.C.C. roofing and occupied the same. In the year 1978, plaintiff's mother constructed R.C.C. roofed shop abutting the sheets roofed tenements measuring 14 ft. x 10 ft., with a view to augment her income. So also, in the year 1985, she constructed a store room measuring 14 ft. x 12 ft. with A.C.C. sheet roofing in the vacant area on the Western side abutting to the main building where hotel materials were stored.

¶32

Further, plaintiff submits that for the hotel business, her mother raised sum of Rs.30,000/- loan by mortgaging the property to Sri M.Subbanna also called as Magaji Subbanna. It was a deed of sale and a re-conveyance agreement dated 10.11.1971. As per the re-conveyance agreement,

¶33

5 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶34

Smt.Karthiayani Amma, was required to repay the principal loan amount along with interest to Sri Magaji Subbanna at the time of final settlement and he had to execute re-conveyance deed. It is further case of the plaintiff that her mother discharged the loan raised by her, in the year 1981 and at the time of final settlement, Sri Magaji Subbanna had executed a 'muchalike' (endorsement) stating that entire debts were discharged and schedule property is free from mortgage deed dated 10.11.1971.

¶35

Further, plaintiff contended that mortgage deed dated 10.11.1971 though styled as a sale deed, was infact a mortgage deed. Certified Copy of the said deed was produced before the Court.

¶36

Further, plaintiff contended that said Sri Magaji Subbanna with an intention to knock of the suit schedule property managed to get khatha transferred in his name. Before the death of plaintiff's mother, she had demanded number of times to execute re-conveyance deed in her favour but the same was postponed by Sri Magaji Subbanna. In the meanwhile, said Sri P.Kumaran Nair, who was one of the

¶37

¶38

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶39

tenants in the A.C.C. sheet roofed portion, died. After the death of plaintiff's mother, there was some delay in approaching Sri Magaji Subbanna by plaintiff for reconveyance.

¶40

When plaintiff tried to approach the defendant through mediators and plaintiff was informed that defendant is having a Will in his favour executed by Sri Magaji Subbanna bequeathing his rights in respect of suit property. Therefore, defendant claimed that he has become the owner of the suit property.

¶41

Later on defendant agreed to sell the suit property in favour of the plaintiff provided the dues of Sri Magaji Subbanna are repaid and therefore, agreement came into existence. In that background, on 04.05.1992, plaintiff gave a Demand Draft bearing No.432073 for a sum of Rs.2,00,000/drawn on Karnataka Bank to the defendant. After receiving the demand draft, defendant informed plaintiff to meet him on 05.05.1992. On 05.0.51992, plaintiff met defendant and defendant gave a receipt already prepared mentioning a sum of Rs.2,00,000/- towards the advance sale price of the suit

¶42

¶43

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶44

schedule property. However, plaintiff questioned the propriety of issuing such receipt and defendant contended that for execution of re-conveyance deed in favour of plaintiff, a regular agreement needs to be entered into and therefore, plaintiff was constrained to enter into an agreement with the defendant for purchase of suit property.

¶45

On 05.05.1992, defendant however, told the plaintiff that another sum of Rs.2,50,000/- has to be paid for execution of the suit agreement and therefore, she was compelled to pay the same. On 05.06.1992, sum of Rs.50,000/- was again paid by plaintiff to defendant and plaintiff called upon the defendant to execute the sale deed. However, with ulterior motive, again defendant playing trick did not execute the sale deed and avoided the execution of the sale deed. Finally, on 03.10.1994, defendant informed the plaintiff that he will not execute any sale deed and demanded the plaintiff to settle the matter amicably. Therefore, plaintiff was constrained to file the suit.

¶46

Upon receipt of suit summons, defendant entered appearance and filed written statement. In the written

¶47

8 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶48

statement it is contended that suit is not maintainable and suit relief cannot be granted as there is no cause of action. The sale agreement is also denied by the defendant. It is further contended that Smt.P.Karthiayani Amma wife of Sri P.Kumaran Nair, who was the owner of the property and she has sold the same to Sri Magaji Subbanna son of Sri Magaji Dondusa.

¶49

The consideration amount of Rs.30,000/- was paid by paying the same of Rs.6,000/- to a person from Punjab at the instructions of Smt.P.Karthiayani Amma and Sri P.Kumaran Nair and thereby, defendant became the owner of the suit property.

¶50

However, when the plaintiff wanted to get the property back, the sale price was fixed at Rs.20,00,000/- and plaintiff paid sum of Rs.2,00,000/- as advance. However, there was no agreement to sell the property in favour of the plaintiffs. Defendant denied the suit averments made in the plaint and sought for dismissal of the suit.

¶51

Based on rival contentions the Trial Court raised necessary issues and additional issues.

¶52

In order to prove the case of the plaintiff, plaintiff got examined herself as PW1 and one witness by name Lalita

¶53

¶54

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶55

as PW2. Plaintiff placed reliance on 32 documentary evidence on record as which are exhibited and marked as Ex.P1 to Ex.P32, comprising of following documents:

¶56

"Certified copy of the sale deed dated 18.11.1964; Certified copy of the sale deed dated 18.11.1971; Certified copy of the sale deed dated 10.11.1964; Tax paid receipts; notice of the defendant; reply notice by the plaintiff; Certified copy of the sale dated 30.04.1966; Acknowledgement of the City Corporation; Circular; Postal cover; Endorsement of the City Corporation; Receipt dated 05.05.1992; Undelivered postal cover; legal notice; Office copy of the endorsement; Postal receipt; Receipt of certificate of posting; Certified copy of the order in MF No.787/2002; Office copy of the notice; Intimation of Bangalore City Corporation; Intimation of Bangalore City Corporation; Intimation of Bangalore Mahanagara Palike; Copy of the letter written by the plaintiff to Bangalore Mahanagara Palike; Certified copy of the letter written by the plaintiff to Bangalore Mahanagara Palike; Certified copy of the statement of the defendant given to Income Tax Officers; Certified copy of the balance sheet submitted by the defendant to the Income Tax Officers; Certified copy of the balance sheet submitted by the defendant to the Income Tax Officers; Certified copy of the Income Tax Returns

¶57

10 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶58

submitted by the defendant; and Certified copy of the Income Tax Returns submitted by the defendant."

¶59

As against the evidence placed on record by the plaintiff, defendant got examined himself as DW.1 and he has relied upon 34 documents which are exhibited and marked as Ex.D.1 to Ex.D.31, comprising of following documents:

¶60

" Xerox copy of the conditional sale deed; Xerox copy of the sale deed' Xerox copy of the conditional sale deed; lease agreement dt. 15.11.1971; Mortgage deed dated 26.05.1976; Receipt dated 26.05.1976; Copy of the Income Tax Returns; Intimation letter of the Income Tax Department; Acceptance to Income and assets tax; Assessment of Property tax for the year 1976-77; Receipt regarding Property tax; Acknowledgement of Income Tax Department; Property Tax Assessment; Clearance certificate of income tax department; Receipt regarding assessment of income tax; Income tax assessment for the year 1979-1980; Income tax assessment for the year 1980-1981; Intimation given by Bangalore Mahanagara Palike; Khatha certificate; and Tax paid receipts."

¶61

On conclusion of recording of evidence, learned trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on

¶62

11 -

¶63

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶64

record by the parties, decreed the suit of the plaintiff in part by ordering refund of sum of Rs.4,50,000/- with 6% interest and dismiss the suit for specific performance.

¶65

Being aggrieved by the said judgment and decree, plaintiff has preferred with present appeal on the following grounds.

¶66

Reiterating in the grounds at in the appeal memo, the Sri.Vishnu Hegde, learned counsel for appellant vehemently contended that the suit schedule property earlier belonged to the mother of the plaintiff is not in dispute. According to the plaintiff, for a hotel business, mother of the plaintiff obtained a sum of Rs.30,000/- as loan by mortgaging the suit property. It is also argued that the loan transaction was styled as sale deed with a condition to re-convey the property infavour of the mother of the plaintiff, if the mother of the plaintiff pays the entire loan amount along with accrued interest. But mother of the plaintiff though repaid the entire amount, did not get the re-conveyance deed from the Magaji Subbanna. Thereafter, mother of the plaintiff died and therefore, plaintiff was constrained to approach the defendant with the mediators whereunder it was agreed that the property was agreed to be

¶67

12 -

¶68

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶69

sold in a sum of Rs.2,00,000/- and later on, the defendant agreed to execute the re-conveyance deed provided another Rs.2,50,000/- is paid and ultimately plaintiff paid entire Rs.4,50,000/- as demanded by the defendant. Despite the same, re-conveyance deed is not executed on flimsy reasons and sought for specific performance of the agreement to sale executed on 05.05.1992 and sought for allowing the appeal.

¶70

He further contended, the oral evidence placed on record by the plaintiff in this regard along with the documentary evidence marked as Ex.P.1 to Ex.P.32, is not properly appreciated by learned trial Judge in the impugned judgment and sought for allowing the appeal.

¶71

He further emphasized that the contents of mortgage deed (the defendant contends that the absolute sale deed) itself establish that it was only a mortgage transaction and not the sale transaction. Mere nomenclature of the document would not result in settling the rights of the parties as absolute sale and it is settled principle of law that the intention of the parties must be inferred by the Court by reading the contents of the documents in toto and if such an exercise is carried out, the transaction entered into by the

¶72

13 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶73

mother of the plaintiff with the Magaji Subbana is none other than a loan and mortgage transaction. But said aspect of the matter is not properly appreciated by the learned Trial Judge in the Court below and wrongly dismissed the suit of the plaintiff is and sought for allowing the appeal.

¶74

Per contra, Sri Narasimhaswamy, learned counsel for respondent contended that during the lifetime of Smt.Kantayinniamma, she did not seek of cancellation of alleged mortgage deed. He further contended that it was a out right sale transaction and Magaji Subbanna has paid sum of Rs.30,000/- as the sale consideration and out of which, sum of Rs.6,000/- was paid to a person from Punjab, as is found from the very contents of document itself, to vacate and hand over the premises and thereby Magaji Subbanna became absolute owner of the property and defendant has became the owner of the property by virtue of the will executed by Magaji Subbanna. As such, the contentions urged on behalf of the appellant cannot be countenanced in law and sought for dismissal of the appeal.

¶75

He also emphasized that sale transaction is to be considered as a mortgage transaction as is contended on behalf

¶76

14 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶77

of the appellant, during the lifetime of Smt.Kantayyiniamma, there should have been legal proceedings whereby the property ought to have been re-conveyed to the mother of the appellant. When no such attempt is made by the mother of the appellant, the appellant cannot now seek any right with regard to the sale deed executed by Smt.Kantayyiniamma infavour of Magaji Subbanna.

¶78

He further contented that if it is not an absolute sale infavour of Magaji Subbanna by mother of the plaintiff, there was no necessity for the plaintiff to enter into an agreement on 05.05.1992.

¶79

He further pointed out for taking advantage of inadvertent spelling mistake in the agreement, the appellant wanted to knock off the property worth more than Rs.20,00,000/- for sum of Rs. 2,00,000/- and which has been rightly refused by the defendant. Therefore, the plaintiff cannot now contend that the property was agreed to be sold only for sum of Rs.2,00,000/-.

¶80

He also emphasized that if it is only sale consideration is sum of Rs.2,00,000/- as is contended by the appellant, there was no necessity for the plaintiff to pay

¶81

15 -

¶82

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶83

another sum of Rs.2,50,000/- and in all Rs.4,50,000/- in respect of the suit property and as such, the plaintiff has not approached the Court with clean hands which is a s ine-quanon, whenever a person seeks a discretionary order of grant of specific performance and said aspect of the matter has been thoroughly appreciated by the learned trial Judge in the impugned judgment by denying any decree for specific performance and ordering return of money of with interest @6% which the defendant is ready to comply and therefore sought for dismissal of the appeal.

¶84

In view of the reveal contents to the party, this Court perused the material on record meticulously. On such meticulous perusal of the material on record, the following points would arise for consideration:

¶85

"(1) Whether the plaintiff has successfully established that she was always ready and willing to the perform her part of the contract and thereby she is entitled for specific enforcement of the agreement to sale dated 05.05.1992?

¶86

(2) Whether the impugned judgment is suffering from legal infirmity or perversity and thus call for interference?

¶87

(3) What order?"

¶88

16 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶89

REGARDING POINT NOS. 1 & 2 :

¶90

In the instant case, though defendant has taken a

¶91

stand in the written statement that the suit agreement is disputed, the payment of Rs.2,00,000/- and further sum of Rs.2,50,000/- is established by plaintiff by placing cogent and convenience evidence on record. There is no proper explanation offered by the defendant for receipt of a sum of Rs.4,50,000/-.

¶92

Further, the defendant has not preferred any appeal against the judgment of the learned trial Court nor filed any cross objections or cross appeal with regard to the return of advance amount of Rs.4,50,000/- with interest at 6% in the impugned judgment. Therefore, the finding with regard to the execution of the agreement and payment of advance amount need not be gone into by this Court in this appeal.

¶93

Resultantly, the sole question that needs to be addressed by this Court by re-appreciating the material on record is whether the material on record is sufficient enough to hold that the plaintiff was always ready and willing to perform her portion of the contract in the agreement sale dated 05.05.1992.

¶94

17 -

¶95

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶96

In that regard, if the material on record is appreciated, though plaintiff has contended that the property was actually mortgaged to the Magaji Subanna, the fact of he entering into agreement and making a claim on the basis of the agreement itself establishes that the title with regard the suit property in redundant. The fact remains that Magaji Subbanna has executed a Will infavour of the defendant and thereby defendant became the owner of the property.

¶97

After payment of Rs.2,00,000/- on 05.05.1992 and a sum of Rs.2,50,000/-, there is no material on record which would indicate that the plaintiff was willing to get the sale deed executed in her favour by paying balance sale consideration. On the contrary, plaintiff has gone on changing her stand stating that she has been duped to sign the agreement and defendant went on playing trick after trick in getting the amount extracted from the plaintiff. Such a contention on behalf of the plaintiff, could not have been taken when she has laid the claim on the basis of the agreement dated 05.05.1992 which is the suit agreement. It is settled principles of law and requires no emphasis that a plaintiff cannot be allowed to take contrary pleas.

¶98

18 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶99

As per the rules pleadings, defendant is entitled to

¶100

take not only alternate pleas, but also mutually destructive pleas. In the case on hand, the defendant is consistent in making his case before the Court stating that the transaction entered into by the mother of the plaintiff in favour of Magaji Subbanna was a absolute sale.

¶101

Having come to know that the plaintiff would not be in a position to get the property re-conveyed by paying the amount of Rs.30,000/- and interest as is contended by the plaintiff, as a last resort, she wanted to purchase the property by virtue of the sale agreement dated 05.05.1992. When such is the unequivocal say of the plaintiff in the pleadings, it is for the plaintiff to establish that she was always ready and willing the perform the remaining porting of the contract as per the agreement dated 05.05.1992 and get the sale deed registered.

¶102

Material evidence on record in this regard, would clearly to show that plaintiff was never willing to pay the balance sale consideration and get the sale deed executed in her favour. Taking note of the these aspects, learned trial Judge came to be conclusion that though suit agreement stands

¶103

19 - NC: 2023:KHC:43753 RFA No. 871 of 2008

¶104

proved and ordered passed return of the advance money with the 6% interest.

¶105

The impugned judgment is in Kannada language and the relevant portion with regard to readiness and willingness of the plaintiff is discussed in Para-37 of the impugned judgment. There is a specific finding recorded by the trial Court that the plaintiff has failed to prove what exactly is the sale consideration by placing the oral and documentary evidence on record. The trial Court has also recorded a categorical finding that the plaintiff is not sure whether she wants re-conveyance of the property by virtue of the contents of the sale deed dated 18.11.1971 (Ex.P2) or she wants specific performance of the agreement dated 05.05.1992 - marked at Ex.P16.

¶106

In this regard, in order to re-appreciate the material on record, this Court bestowed its attention to contents of Ex.P16. Ex.P16 is a receipt having passed on by the defendant to the plaintiff. The contents of Ex.P16 are as under:

¶107

"M. M. Anantha Murthy PHONE: 321214 73, 1st N. BLOCK, RAJAJINAGAR, BANGALORE-560010

¶108

Date : 5th May 1992.

¶109

20 -

¶110

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶111

Received a Demand Draft bearing No. B.No. 432073 on Karnataka Bank, Yeshwanthpur Branch, Bangalore dated 4/5/1992 for Rs. 2,00,000/- (Two Lakhs only) from Smt. Ragini, as an advance towards the sale of property situated at No. 35/10, Model Colony, Yeshwanthpur, Bangalore - 22.

¶112

Sd/(M. M. ANANTHA MURTHY)"

¶113

According to the plaintiff, the receipt dated 05.05.1992 is the suit agreement. The contents of Ex.P16 would clearly go to show that payment of Rs.2,00,000/- is only advance towards the sale of the property.

¶114

Thus, what remains on record is self serving testimony of PW1 and the document in support of her testimony in the form of Ex.P16, which did not specifically establish what is the sale consideration and what was the intention of the parties and what was the total amount that the appellant was required to pay for sale of the property in her favour nor Ex.P16 would go to show that a sum of Rs.2,00,000/- was paid towards re-conveyance of the property

¶115

in furtherance of the deed that has been executed on 18.11.1971 by the mother of the plaintiff.

¶116

21 -

¶117

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶118

Plaintiff sought corroboration of her case by examining PW2-Lalitha, who is sister of the plaintiff. She deposed that the plaintiff is first younger sister of PW2 and she has also narrated about transaction that has been took place between Magaji Subbanna and her mother Kathyayiniamma. In her cross-examination, she admits that in Ex.P16, it is not written that the payment of Rs.2,00,000/- is towards over all settlement. Further, for a specific question that defendant obtained the loan from the bank by mortgaging the schedule property as he was the owner of the property, she denied the suggestion.

¶119

She admits that mutation of the revenue entries were not challenged by the plaintiff or any family members of Kathyayiniamma, after her death. She admits that she was not present when Ex.P16 was executed in favour of the plaintiff by the defendant. If she was not present when Ex.P16 came to executed, she is incompetent to speak about terms of the sale. Therefore, oral evidence of PW2 also would not improve the case of the plaintiff any further extent. As against the evidence placed on record by plaintiff, the defendant has come out with a theory that actually the defendant was not interested in

¶120

22 -

¶121

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶122

selling the property. But looking at the desire expressed by the plaintiff to repossess the property that has been sold by her mother and out of respect, he agreed to re-convey the property

¶123

if the plaintiff were to pay the sale consideration in a sum of Rs.20 lakhs. In that regard, only a sum of Rs.2,00,000/- was paid by the plaintiff as advance sale consideration on 05.05.1992 vide Ex.P16 and subsequent payments are also received only towards the sale consideration and as such the balance sale consideration was not paid by the plaintiff, defendant was not obliged to execute the sale deed in favour of the plaintiff, which has been rightly appreciated by the learned trial Judge in the impugned judgment and hence sought for dismissal of the appeal.

¶124

On cumulative consideration of the oral and documentary evidence placed record and having regard to the scope of the appeal as referred to supra, this Court is of the considered opinion that in the first place, the receipt Ex.P16 could not be construed as an agreement of sale as there is no terms and conditions which could par take the nature of the concluded contract.

¶125

23 -

¶126

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶127

Nevertheless, the oral evidence on record would go

¶128

to show that if the entire sale consideration as agreed between the parties has been paid by the plaintiff, probably defendant was interested in selling the property to the plaintiff. When such evidence is not placed on record by the plaintiff to show that she was always ready and willing to perform her portion of the contract by paying entire sale consideration of Rs.20 lakhs as is found from the record, the learned trial Judge was justified in refusing decree for specific performance and ordering refund of Rs.4,50,000/- along with interest at the rate of 6% per annum, taking note of the fact that the defendant had unjust enrichment as is found in Section 72 of the Contract Act.

¶129

A Division Bench of this Court while considering similar situation in RFA No.166/11 DD 08.11.2014, in the case of M/s Wellesly Corporation Limited VS Kalavathi and others, in paragraph No.10 has held as under:

¶130

"10. Furthermore, in the light of the deposit made by the plaintiff of the amount of Rs. 22,00,000/- in the State Bank of Mysore on 27-3-2000, the trial court was justified in ordering refund of Rs. 22,00,000/- which is in deposit with the said bank,

¶131

24 -

¶132

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶133

at the prevailing rate of interest at 10% per annum from the date of termination till the date of deposit. We are of the considered view that the award of interest for the relevant period is just and appropriate. Since the amounts have been deposited, the plaintiff is entitled for refund of the amount with interest at 24% only for the period from the date of termination of the agreement till date of such deposit.

¶134

Accordingly Issue No. 1 is answered by affirming the Judgment of the trial court by holding that the Trial Court was justified in decreeing the suit only for refund of the a mount paid and not specific performance of contract. The second issue is answered by holding that non-demand of specific performance of the contract and demand only for refund of money, would in law amount to waiver of the right to seek specific performance. The Issues are accordingly answered."

¶135

Having regard to the nature of transaction and also defendant having denied the receipt of another sum of Rs.2,50,000/and material on record establishes that defendant has received Rs.4,50,000/-, this Court is of the considered opinion that if the defendant is ordered to repay a sum of Rs.4,50,000/- along with interest at the rate of 12% per

¶136

25 -

¶137

NC: 2023:KHC:43753 RFA No. 871 of 2008

¶138

annum as against 6% per annum, as ordered by the learned trial Judge, the ends of justice would be met.

¶139

Accordingly, point No. 1 is answered in the negative

¶140

and point No.2 is answered partly in the affirmative.

¶141

REG. POINT NO.3:

¶142

In view of finding of this Court on Point Nos.1 & 2, following order is passed:

¶143

ORDER

¶144

(i) Appeal is allowed in part.;

¶145

(ii) While maintaining the decree of refund of the advance of Rs.4,50,000/-, instead of interest at the rate of Rs.6% per annum, defendant is directed to pay interest at the rate of 12% per

¶146

annum from the date of suit till realization.;

¶147

(iii) No order as to costs.

¶148

Sd/- JUDGE

¶149

KAV VK List No.: 1 Sl No.: 34

P Ragini v. M M Ananthamurthy

Case brief

What is this about?

What did the court decide?

P Ragini v. M M Ananthamurthy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Sri Chikkahanumaiah Vs Sri Mallegowda

Smt R Usha Kumari Vs Sri a Mariyappa

Mrs Lynette Fernandes Vs Mrs Gertie Mathias

Sri Hanumanthappa Vs Smt Rukkamma

Mr Syed Ziaulla Sha Vs Mr Syed Abudl Azeez Omeri

A Jeba Joel Singh Vs Bpl Telecom Pvt. Ltd.