High Court of Karnataka dismissed a regular second appeal filed by a defendant in a suit for specific performance of a contract. The court held no substantial ground of failure of justice was established and confirmed the lower courts' judgments.
Appeal dismissed; judgments and decrees of courts below confirmed; decree amount transmitted to trial court.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1090 OF 2016 (MON)
BETWEEN:
SRI. K.S. JAGADEESH AGED ABOUT 60 YEARS, S/O SIDDARAMAPPA, R/O 2ND CROSS, KUMBARA BEEDHI, HASSAN 573201
…APPELLANT
(BY SRI. NARAYANA SWAMY H., ADVOCATE FOR SRI. SANGAMESH R B., ADVOCATE)
AND:
Digitally signed by SUNITHA GANGARAJU Location: High Court of Karnataka
SRI. RAMESH S/O H S NANJAPPA, AGED ABOUT 61 YEARS, R/AT NEAR NEELAKANTESHWARA TEMPLE HASANAMBA TEMPLE STREET HASSAN-573201 (BY SRI. R. SUBRAMANYA, ADVOCATE)
…RESPONDENT
THIS RSA IS FILED UNDER ORDER 42 R/W SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.02.2016 PASSED IN RA.NO.21/2011 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.12.2010 PASSED IN OS.NO.193/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) HASSAN.
NC: 2023:KHC:36826 RSA No. 1090 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 20.02.2016, passed in R.A.No.21/2011 by the III Additional District and Sessions Judge at Hassan, confirming the judgment and decree dated 09.12.2010 passed in O.S.No.193/2003 by
the Principal Civil Judge (Senior Division), Hassan.
to as per their ranking before the trial Court. The appellant is the defendant and the respondent is the plaintiff.
The plaintiff filed a suit for specific performance of contract. It is the case of the plaintiff, that the defendant had entered into an agreement of sale dated 12.08.1999 of the property bearing municipal katha No.1319 (old) 1257/A (new) and A.R.No.1172 measuring East-West 38
feet and North-South 21 feet situated at 2nd Cross, Kumbar Street, Hassan City for valuable sale consideration of Rs.6,00,000/- and received a sum of Rs.3,00,000/- as earnest money, who executed an agreement of sale on 12.08.1999. It is contended that the plaintiff always ready and willing to perform his part of contract by keeping the balance sale consideration amount ready. The plaintiff approached the defendant, he has pleaded his inability to execute the registered sale deed. The plaintiff requested the defendant to receive the balance consideration amount and to execute a registered sale deed, but the defendant did not comply with the terms and conditions of the agreement of sale. The plaintiff got issued a legal notice dated 16.07.2003 calling upon the defendant to repay the balance consideration amount with interest or to execute the registered sale deed. The said notice was served on the defendant. The defendant neither received the balance consideration amount nor executed a registered sale deed. Hence, cause of action arose for the plaintiff to file a suit for specific performance of contract.
NC: 2023:KHC:36826 RSA No. 1090 of 2016
contending that the suit filed by the plaintiff is not maintainable either in law or fact. The averments made in the plaint are denied. It is contended that he had a chit transaction during the year 1998-99 with one Shivamurthy, who was conducting the chit. The chit amount was for Rs.2,10,000/-. The said Shivamurthy discounted Rs.80,000/- out of Rs.2,10,000/- and paid a sum of Rs.1,30,000/- to the defendant. While paying Rs.1.30,000/-, the said Shivamurthy demanded the blank cheque, which was not available with the defendant. He agrees to put his signature on the bond papers. The bond papers contain Rs.100/- each. It is contended that the said Shivamurthy assured and promised this defendant that the said papers are going to be returned by him after full repayment of chit amount. The defendant has cleared the chit amount by paying the monthly chit amount upto the last month. The said Shivamurthy and plaintiff having colluded with each other and in order to have illegal gain, said Shivamurthy projected the plaintiff
alleged suit agreement. Hence, on these grounds, sought
for dismissal of the suit.
Issues :
Additional Issues :
plaintiff examined himself as PW-1 and got examined one
witness as PW-2 and got marked 4 documents as Exs.P1
to P4. Defendant No.1 examined himself as DW-1 and got examined one witness as DW-2 and got marked 4
documents as Exs.D1 to D4. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1 and 2 in affirmative, issue No3, additional issue Nos.1 and 2 in negative and issue No.4 as per final order and consequently, decreed the suit of the plaintiff with cost. It is ordered and decreed that the plaintiff is entitled for recovery of a sum of Rs.5,15,650/together with interest at 18% p.a., from the date of suit till its realization. Further, it is ordered and directed the defendant to pay the said sum to the plaintiff together with current and future interest within 2 months from the date of passing of this judgment.
under Order 41 Rule 27 of CPC to give an opportunity and to adduce further evidence?
oral and documentary evidence, answered point Nos.1 to 3 in the negative and consequently dismissed the appeal filed by the defendant, confirming the judgment and decree passed by the trial Court. The defendant, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.
the courts below have not properly appreciated the material placed on record. He submits that both the courts
NC: 2023:KHC:36826 RSA No. 1090 of 2016
below have committed an error in passing the impugned judgments and decrees. Hence, on these grounds, he prays to allow the appeal.
sale deed. The plaintiff in order to prove the execution of the agreement of sale, has produced the agreement of sale marked as Ex.P1 and the plaintiff has also examined the attesting witness as PW.2 who has deposed in the same line of PW.1. In the course of cross-examination, nothing has been elicited from the mouth of this witness. In rebuttal, the defendant was examined as DW.1 and he has reiterated the averments made in the written statement and produced the agreement dated 13.01.1999. Ex.D2 is the licence issued by K.E.B. Ex.D3 is the certified copy of the registered sale deed dated 12.08.1999. Ex.D4
is the certified copy of the registered sale deed dated 15.03.2011. In order to establish that the defendant is in possession of the suit schedule property, the defendant examined one witness as DW.2, who is a tenant in the suit schedule property.
NC: 2023:KHC:36826 RSA No. 1090 of 2016
defence that the plaintiff has played fraud on the defendant, but the defendant has not examined any witnesses to prove that the plaintiff and Shivamurthy have played fraud on the defendant. However, the defendant has not led any evidence. The plaintiff by producing Ex.P1 and by examining PW-2 who is the attesting witness to Ex.P1, has proved that the defendant has executed an agreement of sale in favour of the plaintiff on 12.08.1999. Further, the plaintiff got issued a legal notice to prove his readiness and willingness, but the defendant did not reply to the legal notice. Thus, it clearly demonstrated that the defendant was not willing to perform his part of contract in terms of agreement of sale dated 12.08.1999 as per Ex.P1. From the perusal of the record, the plaintiff has proved the execution of an agreement of sale dated 12.08.1999 and he was ready and willing to perform his part of contract. However, the plaintiff has sought an alternative relief of refund of amount. Learned counsel for the defendant submits that pursuant to the order dated 12.07.2018, the defendant has deposited a sum of
Rs.2,00,000/- on 27.07.2018. From the perusal of the office note, the defendant has deposited the amount pursuant to the interim order. Both courts below were justified in passing the impugned judgments. Hence, I do not find any grounds to interfere with the impugned judgments. Accordingly, I do not find any substantial questions of law that arises in this appeal.
circumstances, I proceed to pass the following:
ORDER
The appeal is dismissed.
Consequently, the judgments and decrees passed by the courts below are confirmed.
Registry is directed to transmit the decreetal amount deposited before this Court to the trial Court.
NC: 2023:KHC:36826 RSA No. 1090 of 2016
No order as to the costs.
In view of dismissal of the appeal, I.A.No.1/2016
does not survive for consideration and accordingly disposed of.
Sd/JUDGE
SSB
2 issues framed by the court
Whether the appellant's appeal against the confirmation of the trial court's decree for specific performance ought to be allowed?
Whether substantial questions of law arise necessitating interference with the judgments and decrees passed by the courts below?
SRI. K.S. JAGADEESH
SRI. RAMESH
ASHOK S. KINAGI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
