The High Court of Karnataka dismissed an appeal under Section 100 of CPC. The judge concluded there was no substantive question of law regarding the nature of the transaction (sale vs. loan) as it had already been conclusively found by lower courts, rendering the second appeal inadmissible.
The appeal was dismissed and incidental applications were disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1026/2022 (SP)
BETWEEN
BOREGOWDA S/O SHIVANANJEGOWDA AGED ABOUT 70 YEARS R/AT MAYASAMUDRA VILLAGE DUDDA HOBLI, HASSAN TALUK HASSAN-573118
...APPELLANT
(BY SRI HEMANTH KUMAR D, ADVOCATE)
AND
SIDDEGOWDA S/O LAKSHMEGOWDA AGED ABOUT 72 YEARS R/AT MAYASAMUDRA VILLAGE DUDDA HOBLI, HASSAN TALUK HASSAN-573118
… RESPONDENT
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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.03.2022 PASSED IN R. A.NO.126/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN IN CONFIRMING THE JUDGMENT AND DECREE DATED 11.06.2019 PASSED IN O.S.NO.275/2014 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC AT HASSAN AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission. Heard the learned counsel appearing for the appellant.
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appellant/defendant before the Trial Court that he has not executed any sale agreement and he had executed only security document for the loan amount which he has received from the respondent/plaintiff and the documents which have been obtained at the time of lending the loan were created as sale agreement and filed the suit for specific performance of contract. The Trial Court without considering the recitals mentioned in document at Ex.P1 proceeded to pass an order directing the appellant/defendant to execute the sale deed.
contend that no reply was given to the legal notice since the appellant was an illiterate and hence, the Trial Court has drawn an adverse inference that the appellant has not denied the transaction when the notice was given. The main contention of the counsel for the appellant before this Court that the Trial Court is not justified in decreeing the suit for specific performance of contract and though the alleged agreement is a
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created document on a signed blank stamp paper and also committed an error in decreeing the suit for specific performance of contract though the suit schedule property was a granted property in favour of the defendant/appellant having nonalienation clause for a period of 15 years and the appellant has not executed any agreement and the First Appellate Court also not justified in confirming the judgment of the Trial Court.
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The defence set forth by the appellant/defendant that he has not agreed to sell the property and the document towards security for the loan was created as sale agreement.
case, examined himself as PW1 and other two witnesses as PW2 and PW3 to prove the said sale agreement and got marked the documents at Ex.P1 to P7. On the other hand, the respondent examined the Power of Attorney holder as DW1 and got marked the document at Ex.D1. The Trial Court after considering both the oral and documentary evidence decreed the suit in favour of the respondent/plaintiff. Being aggrieved by the said judgment
and decree, an appeal was preferred before the First Appellate Court and the First Appellate Court on considering the material available on record framed the points for consideration that whether the respondent/plaintiff has proved the execution of the sale agreement and whether he was always ready to have the sale deed in his favour and on re-appreciation of the material available on record confirmed the judgment of the Trial Court
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and dismissed the appeal of the appellant/defendant and the First Appellate Court also disbelieved the contention of the appellant that it was only a loan transaction and not the sale transaction. Hence, the present appeal is filed before this Court.
for the appellant and also on perusal of the material available on record it is not in dispute with regard to the signature found on the document at Ex.P1-agreements of sale and the main contention of the counsel for the appellant that it was a granted land and grant was made in the year 1996 and sale transaction entered in the year 2002 i.e., within a period of 15 years of nonalienation clause and the same has not been considered by both the Courts. No doubt, it is not in dispute that the land was granted in the year 1996 but agreement was entered in the year 2002 i.e., within a period of 15 years. It is also important to note that in the sale agreement, no time is stipulated in order to execute the sale deed. But the fact that the appellant/defendant had received the amount and the same is also not in dispute.
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But only contention of the appellant/defendant that in order to financial constraints, the amount was received as loan. The respondent/plaintiff in order to prove that it was a sale agreement relied upon the document at Ex.P1 and also the evidence of PW2 and PW3. It is also important to note that the appellant/defendant did not appear before the Court and instead of that examined his Power of Attorney holder as DW1. Apart from that the Trial Court also taken note of the original land grant certificate which was delivered in favour of the respondent/plaintiff at the time of the loan transaction and the First Appellate Court also on re-appreciation of both the oral and documentary evidence taken note of the said fact into consideration and it is also not in dispute that the respondent/plaintiff got issued the legal notice on 27.12.2013 as per Ex.P3 calling upon the appellant/defendant to execute the sale deed. Though the appellant/defendant has received the said notice, he failed to give reply to the said notice. If it is really a loan transaction, same was in the knowledge of the appellant/defendant and he would have given the reply stating
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that it was not a sale transaction it was a loan transaction. But on perusal of the documents at Ex.P1 it discloses that the same came into existence in the year 2002 and even after two years of the first agreement i.e., in the year 2004, the second continued agreement came into existence and in the said agreement, he had acknowledged the balance amount of Rs.40,000/-. When such being the materials available on record that Ex.P1 is the first agreement of sale and Ex.P2 is the subsequent continued agreement of sale and the original document also handed over in favour of the respondent/plaintiff at the time of the transaction, the very defence of the appellant/defendant that it was only a loan transaction cannot be accepted and also both the Courts have considered the material on record and given the finding. When such being the case, there is no substantive question of law to decide the issue in the second appeal invoking Section 100 of CPC and admit the same and in order to invoke the jurisdiction of second appeal, there must be a substantive question of law and with regard to the defence of the appellant that it was only a loan transaction, both the Courts have given
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the finding that it was not a loan transaction, it was a sale transaction. Hence, I do not find any grounds to invoke Section 100 of CPC to frame substantive question of law.
following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A.s if any,
do not survive for consideration and the same stand disposed of.
Sd/JUDGE
SN
2 issues framed by the court
Whether the second appeal is maintainable invoking Section 100 of CPC given the absence of a substantive question of law regarding the nature of the transaction.
Whether the agreement was a loan transaction disguised as a sale agreement or a genuine sale agreement enforceable for specific performance.
1 provisions across 1 enactments
Boregowda
Siddegowda
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
