Dismissed

Nagarajegowda @ Nagaraju v. Sri. Ramakrishna

Karnataka HC18 Dec 2023RSA/1591/2023

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal against concurrent judgments decreeing specific performance of an agreement to sell. The court held that the defendants were grossly unfair, failed to lead rebuttal evidence despite ample opportunity, and that the lower courts correctly exercised discretion in favor of the plaintiff.

What did the court decide?

Second appeal dismissed; pending interlocutory application disposed of.

Nagarajegowda @ Nagaraju Vs Sri. Ramakrishna — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.1591 OF 2023 (SP)

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BETWEEN:

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NAGARAJEGOWDA @ NAGARAJU S/O VAJREGOWDA AGED ABOUT 49 YEARS

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SMT VIJAYA W/O NAGARAJEGOWDA AGED ABOUT 47 YEARS

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SMT M N PRIYANKA S/O NAGARAJEGOWDA AGED ABOUT 26 YEARS

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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M.N.KANCHANA AGED ABOUT 24 YEARS, S/O NAGARAJEGOWDA

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M.N.NISARGA AGED ABOUT 22 YEARS, S/O NAGARAJEGOWDA

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VARUN GOWDA.M.N AGED ABOUT 21 YEARS, S/O NAGARAJEGOWDA

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ALL ARE RESIDING AT MALIKAVALU VILLAGE, HONGERE POST, SHANTHIGRAMA HOBLI,

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2 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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HASSAN TALUK HASSAN-573 220

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…APPELLANTS

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(BY SRI. PRAJWAL B H, ADVOCATE)

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AND:

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SRI. RAMAKRISHNA S/O LATE MATEGOWDA AGED ABOUT 69 YEARS NEAR SANTHEPETE SCHOOL HUNISEKERE EXTENSION WARD NO 29, HASSAN-573201

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…RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.06.2023 PASSED IN RA.NO.33/2020 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.08.2018 PASSED IN O.S.NO.131/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN.

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

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JUDGMENT

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The captioned second appeal is filed by unsuccessful defendants who have questioned the concurrent judgments of the Courts below wherein plaintiff’s suit seeking relief of specific performance of contract is decreed by both the Courts.

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3 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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For the sake of brevity, the parties are referred

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to as per their rank before the trial Court.

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The facts leading to the case are as under:

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The plaintiff has filed suit for specific performance of contract in O.S.No.131/2016. The plaintiff’s case is that defendants offered to sell the suit land and accordingly executed an registered agreement to sell on 19.11.2014. The plaintiff further pleaded that defendants were in financial need to perform the marriage of defendant No.3 and therefore, for family necessity offered to sell 3 acres out of 6 acres in Sy.No.33. After negotiation and due deliberations, it was agreed that suit property would be sold for Rs.5,05,000/-. Accordingly, on 19.11.2014, defendants executed an registered agreement to sell by receiving substantial sale consideration of Rs.5,00,000/out of total Rs.5,05,000/-. The present suit is filed alleging that plaintiff is ever ready and willing to perform his part of contract but defendants have deliberately not come forward to complete the transaction by executing

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sale deed. The plaintiff has alleged that though legal notice was issued through his counsel, defendants have neither offered any reply nor have come forward to complete the sale transaction. Hence, the present suit.

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The defendants tendered appearance, filed written statement and admitted that defendant No.1 has received an amount of Rs.5,00,000/-. However, defendants claimed that they had no intention to sell the suit land and therefore, claimed that it is loan transaction. The defendants further contended that defendant No.1 is an illiterate person and plaintiff in collusion with the SubRegistrar has concocted the security document as an agreement to sell. The defendants also contended that market value of the suit property is Rs.75,00,000/- and that suit property is an ancestral property. The defendants further contended that defendant Nos.1 to 3 have no absolute right to sell the suit schedule property adverse to the interest of the minor defendant Nos.4 to 6. The defendants pleaded that they are willing to repay the

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5 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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loan borrowed by them and hence, sought for dismissal of the suit.

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The plaintiff to substantiate his claim let in oral and documentary evidence. In absence of contest by the

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defendants, trial Court exercising judicial discretion in favour of plaintiff held that plaintiff has succeeded in substantiating the due execution of sale agreement dated 19.11.2014. While answering issue No.2 in the negative, for want of rebuttal evidence, trial Court held that defendant No.1 has failed to substantiate that suit agreement was offered only as a security and it is a loan transaction.

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Feeling aggrieved by the judgment and decree of the trial Court, the defendants preferred appeal before the appellate Court.

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Though defendants contended that no

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opportunity was afforded to them to contest the suit, the said contention was not acceded to by the appellate Court. At para 22, appellate Court pointed out all significant

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details reflecting conduct of defendants and the manner in which the suit is contested and adjournments are sought and held that it is not a fit case to grant any indulgence. Having reassessed the entire evidence let in by the plaintiff independently, appellate Court was of the view that plaintiff is entitled for discretionary relief of specific performance of contract. Consequently, appeal is dismissed. These concurrent judgments are under challenge.

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Heard learned counsel appearing for the defendants. Perused the concurrent findings recorded by both the Courts below.

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Learned counsel appearing for the defendants has vehemently argued and contended that defendants were denied fair opportunity and therefore, same has lead to miscarriage of justice and defendants right in immovable property is seriously prejudiced. This argument canvassed by the learned counsel appearing for the defendants is found to be totally contrary to the

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NC: 2023:KHC:46180 RSA No. 1591 of 2023

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records. Therefore, I deem it fit to advert to the findings recorded by the appellate Court at para 22 and 23. It would be useful for this Court to cull out said paragraphs which reads as under:

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“22. But perusal of the trial Court records it reveals that in the earlier occasion though defendants appeared through their Counsel, they did not file any written statement. The chiefexamination evidence of P.W.’s.1 and 2 was over, the defendants have filed an application before the Trial Court seeking permission to file their written statement and the said application was allowed by the trial Court on payment of costs. Subsequently, both parties have submitted before the trial Court that the matter may be referred to mediation centre. Since, the matter was not settled before the mediation centre issues were framed by the trial Court and after framing of the issues matter was posted for cross-examination of P.W.’s.1 and 2. Since 25-01-2017 to 26-10-2017 the matter was posted for cross-examination of P.W.’s.1 and 2. On 26-07-2017, the trial Court has passed an order to the effect that cross-examination of P.W.’s.1 and 2 taken as nil since no representation made on behalf of the defendants. Again on 21-11-2017, the application has been filed by the defendants seeking

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8 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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recall of P.W.’s.1 and 2 and the said application came to be allowed on payment of costs. Again the case was posted for cross-examination of P.W.’s.1 and 2. From 2-1-2018 to 6-2-2018 the matter was posted for cross-examination of P.W.’s.1 and 2. On 6-22018 the trial Court has ordered that the crossexamination of P.W.’s.1 and 2 taken as nil and posted the matter for defendant’s evidence.

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23. Subsequently, on next adjournment i.e., on 16-02-2018 the counsel for the defendant has filed an application to recall of P.W.’s.1 and 2, and the said application came to be allowed by the trial Court on further cost of Rs.1,000/- and the matter was adjourned to 22-03-2018, for cross-examination of P.W.’s.1 and 2 and on that day the counsel for defendants has submitted that the matter is likely to be compromised, and as such, case was posted for cross-examination of P.W.’s.1 and 2 and reported about the compromise. Subsequently, on 9-7-2018 P.W.’s.1 and 2 were present before the trial Court and since no representation made on behalf of the defendant’s side, again the matter was adjourned to 24-07-2018. On that day, both P.W.’s.1 and 2 were present before the trial Court. Since no representation made on behalf of defendants side, cross-examination of P.W.’s.1 and 2 taken as nil by the trial Court. The matter was posted for defendant’s evidence. Subsequently, on 2-8-2018,

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9 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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defendants did not appear before the trial Court, and as such, the defendant’s evidence taken as nil and the matter was posted for arguments. Even when the matter was posted for arguments, no representation was made on behalf of the defendant’s side. The trial Court after hearing the plaintiff’s side has posted the matter for judgment. On perusal of the order sheet of the trial Court it is clear that the trial Court has given sufficient opportunity to the defendants to cross-examine P.W.’s.1 and 2. In spite of sufficient opportunity has been afforded to the defendants they failed to crossexamine the P.W.’s.1 and 2. Thus, the contentions of the appellants that they were not given sufficient opportunity to cross-examine P.W.’s.1 and 2 is not acceptable.”

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Having glanced at these two paragraphs which

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are culled out supra, I am more than satisfied that no indulgence is warranted in the present case on hand. The conduct of defendants in the present case on hand is found to be grossly unfair and that conduct is consistently found to be blemished. On plain reading of the above two culled out paragraphs, it clearly depicts the conduct of defendants and the manner in which they have contested

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10 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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the suit. Right from filing of written statement, the defendants have used all possible means to protract the hearing of the suit. The written statement is filed but that too with permission of the Court after filing an application. The defendants did not chose to cross-examine the plaintiffs. On 26.07.2017, trial Court passed an order taking cross-examination on behalf of defendants as Nil. The defendants came out with application on 21.11.2017 requesting the Court to recall PWs.1 and 2. The said application is allowed on payment of cost. Having availed one opportunity, they again failed to cross-examine the plaintiff. Again the cross-examination of PWs.1 and 2 is taken as Nil and the matter is posted for defendants evidence. The defendants again came with application to recall PWs.1 and 2. This application is again allowed by the trial Court by imposing cost of Rs.1,000/-. Having succeeded, plaintiff’s go on seeking adjournments on the premise that the matter is likely to be settled. When PWs.1 and 2 were kept present on 09.07.2018, counsel for the defendants have not chosen to appear before the

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Court. The matter was ordered to be listed on 24.07.2018. Since there was no representation even on

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the said date, trial Court having given a long rope to defendants finally decides to take cross-examination on behalf of the defendants as Nil and then the matter is posted for defendants evidence. Finally, the defendants evidence is taken as Nil and the matter is posted for arguments and thereafter, trial Court having meticulously assessed the evidence let in by the defendants has come to conclusion that this is a fit case to grant discretionary relief of specific performance of contract. The trial Court having examined the equities and having found that equity leans in favour of plaintiff has exercised judicial discretion in favour of plaintiff and not in favour of defendants. The appellate Court being final fact finding authority has meticulously re-assessed the evidence on record independently and has also not granted any indulgence.

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The relief of specific performance is

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discretionary and is governed by sound judicial principles.

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12 -

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NC: 2023:KHC:46180 RSA No. 1591 of 2023

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The grant of relief is at the discretion of the Court. The Court, if all the ingredients are available, is bound to exercise discretion and direct specific performance unless it should be what is called highly unreasonable to do so. In exercising discretion, the Court should take into account the circumstances of the case, the conduct of parties and their respective interest under the contract. It is also a trite law that as an ordinary rule, specific performance should be granted and has to be denied only when equitable considerations show that damage would constitute an adequate relief.

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In the light of discussion made supra, this Court

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is of the view that there is absolute laxness on the part of the defendants. All possible stands are taken in the written statement. If defendants intended to non-suit the plaintiff, it was incumbent on them to lead rebuttal evidence to demonstrate that the transaction is not a sale transaction but the said document was offered towards security for having secured hand loan. A sum of

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13 - NC: 2023:KHC:46180 RSA No. 1591 of 2023

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Rs.5,00,000/- is not a small amount in 2014 and if defendant No.1 has acknowledged receipt of

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Rs.5,00,000/-, in absence of rebuttal evidence, both the Courts were justified in exercising discretion in favour of plaintiff.

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No substantial question of law arises for consideration. Accordingly, appeal is dismissed.

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The pending interlocutory application, if any, does

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not survive for consideration and stands disposed of.

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Sd/JUDGE

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List No.: 1 Sl No.: 13

Nagarajegowda @ Nagaraju v. Sri. Ramakrishna

Case brief

What is this about?

What did the court decide?

Nagarajegowda @ Nagaraju v. Sri. Ramakrishna

Case brief

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What did the court decide?

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