Dismissed

Parameshwara S v. Subbammannamma

Karnataka HC7 Nov 2023RSA/817/2016

Case brief

AI extract

What is this about?

Appearing as R2A against an order reversing a specific performance decree. The High Court dismissed the appeal, upholding the Appellate Court's refusal to grant specific performance due to lack of evidence on readiness and willingness, noting the property was hypothecated.

What did the court decide?

Appellant to deposit earnest money with interest at 9% p.a. within two months of this order.

Parameshwara S Vs Subbammannamma — Specific Performance | Karnataka HC (2023)

¶1

NC: 2023:KHC:39586 RSA No. 817 of 2016

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 817 OF 2016 (SP)

¶7

BETWEEN:

¶8

PARAMESHWARA. S, S/O. SIDDALINGEGOWDA, AGED ABOUT 43 YEARS, R/AT: NO.9, 2ND MAIN, OPPOSITE TO GARDEN ENGLISH SCHOOL, VITTALNAGAR, BANGALORE - 560 018.

¶9

…APPELLANT

¶10

(BY SRI. GIRISH B. BALADARE, ADVOCATE)

¶11

AND:

¶12

SUBBAMMANNAMMA, D/O LATE SHIVANNA, AGED ABOUT 65 YEARS,

¶13

Digitally signed by REKHA ANKAIAH Location: High Court of Karnataka

¶14

MAHESHA, S/O LATE SHIVANNA, AGED ABOUT 44 YEARS,

¶15

SURESHA, S/O. LATE SHIVANNA, AGED ABOUT 39 YEARS,

¶16

KUMARA, S/O. LATE SHIVANNA, AGED ABOUT 38 YEARS,

¶17

2 - NC: 2023:KHC:39586 RSA No. 817 of 2016

¶18

RESPONDENT ALL ARE R/AT: R/AT BASAVATTI VILLAGE, SANTHEMARAHALLI HOBLI, CHAMARAJANAGARA TALUK AND DISTRICT - 571 313.

¶19

…RESPONDENTS

¶20

(BY SRI. DEEPAK D.C, ADVOCATE FOR C/R1 TO R4)

¶21

THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.03.2016 PASSED IN R.A.NO.74/2009 ON THE FILE OF SR. CIVIL JUDGE & CJM, CHAMARAJANAGAR, PARTLY ALLOWING THE APPEAL AND FILED AGAINST DECREE DATED 30.07.2009 PASSED IN O.S.NO.33/2007 ON THE FILE THE CIVIL JUDGE (JR.DIVN.)& JMFC, YELANDUR.

¶22

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

¶23

JUDGMENT

¶24

The captioned Second Appeal is filed by the plaintiff assailing the judgment and decree rendered by the Appellate Court, wherein the plaintiff's suit for specific performance of contract, though decreed by the Trial Court, is reversed by the Appellate Court by granting a refund of advance money of Rs.40,000/- with interest at the rate of 9% p.a.

¶25

¶26

NC: 2023:KHC:39586 RSA No. 817 of 2016

¶27

For the sake of brevity, the rank of the parties

¶28

are referred as they are ranked before the Trial Court.

¶29

Facts leading to the case are as under:

¶30

The plaintiff filed a suit for specific performance of contract in O.S.No.33/2007, placing his claim on an agreement to sell dated 14.08.2006 executed by defendant No.1's husband Shivanna and the present defendants. The plaintiff claimed that the defendants, on account of financial constraints and under compelling circumstances, offered to sell the suit property and accordingly executed an agreement by receiving earnest money of Rs.40,000/- out of total sale consideration of Rs.1,13,850/-.

¶31

The plaintiff alleged in the plaint that he was

¶32

ever ready and willing to perform his part of contract and repeatedly requested defendants to come forward and complete the transaction by receiving balance sale consideration. The plaintiff has alleged that the defendants

¶33

4 - NC: 2023:KHC:39586 RSA No. 817 of 2016

¶34

went on assuring that they would complete the transaction after clearing the outstanding loan availed from State Bank of Mysore, which was to the tune of Rs.4,00,000/-.

¶35

The defendants on receipt of summons, tendered appearance and stoutly denied the entire averments made in the plaint. The defendants, on the contrary, claimed that they have executed the suit agreement as a security to loan transaction and therefore contended that the present suit agreement is offered as security and they had no intention to sell the suit property. The defendants also further specifically contended that signatures on the suit agreement were secured by the plaintiff on a blank stamp paper and that the plaintiff has used this blank stamp paper signed by the defendant and the present suit is filed alleging that the defendants offered to sell and the agreement was executed in his favour. Defendants have also contended that suit property is their only property and the entire family is dependent for their livelihood on the income generated from the suit

¶36

5 - NC: 2023:KHC:39586 RSA No. 817 of 2016

¶37

schedule property. The defendants have also contended that they have already availed loan from the State Bank of Mysore and hence, contended that the plaintiff is not entitled for specific performance of contract.

¶38

Plaintiff and defendants to substantiate their respective claim have let in oral and documentary evidence.

¶39

The Trial Court having held that the plaintiff has

¶40

succeeded in proving due execution of suit agreement, decreed the suit by holding that the plaintiff is entitled for discretionary relief of specific performance of contract. The defendants contention that the suit agreement was obtained by way of security towards hand loan of Rs.40,000/- was negatived by the Trial Court.

¶41

Defendants feeling aggrieved by the judgment and decree of the Trial Court, preferred an appeal before the appellate Court in R.A.No.74/2009. The Appellate Court, being a final fact-finding authority, has

¶42

6 - NC: 2023:KHC:39586 RSA No. 817 of 2016

¶43

independently assessed the entire material on record. Though the Appellate Court concurred with the findings recorded by the Trial Court on issue Nos.1 and 3, however took a contrary view insofar as issue No.2 is concerned. The Appellate Court, having taken note of the fact that the time stipulated under the suit agreement was two months, was of the view that the plaintiff has failed to substantiate his claim that he was ever ready and willing to perform his part of contract. The Appellate Court has drawn an adverse inference against plaintiff, who has straight-way proceeded to institute a suit even without calling upon defendants to complete the transaction by receiving balance sale consideration. It is in this background, for want of evidence on issue No.2, the Appellate Court took a divergent view and held that the plaintiff has failed to prove his readiness and willingness.

¶44

Heard learned counsel appearing for the plaintiff and learned counsel appearing for the defendants.

¶45

¶46

NC: 2023:KHC:39586 RSA No. 817 of 2016

¶47

Perused the divergent findings recorded by both the Courts below.

¶48

On meticulous examination of evidence on

¶49

record, though the plaintiff has succeeded in establishing due execution of the agreement vide Ex.P.1, on meticulous examination of the suit agreement, the narration by the defendants in the written statement stands probabalized. Admittedly, the non-judicial stamp papers were purchased by the husband of defendant No.1, namely, Shivanna. However, on examining the suit agreement, the theory set up by the defendants that the plaintiff has secured signatures of Shivanna and defendants on blank stamp papers stands probablised. The entire agreement is concluded on one page. The signatures of defendants and witnesses are also secured on a single page of non-judicial stamp paper worth Rs.50/-. The defendants have succeeded in substantiating that the suit property is already mortgaged with the State Bank of Mysore and outstanding balance amount is more than Rs.4,00,000/-.

¶50

8 - NC: 2023:KHC:39586 RSA No. 817 of 2016

¶51

On meticulous examination of suit agreement, vide Ex.P.1, this Court is of the view that the findings recorded by both

¶52

the Courts that the transaction vide Ex.P.1 is a sale transaction suffer from serious infirmities. The Appellate Court, while re-assessing the evidence, has not taken note of the averments made at paragraph No.9 of the written statement. Paragraph No.9 of the written statement is culled out which reads as under:

¶53

9) These defendants submits that the plaintiff has not placed any truthful facts before this Hon'ble Court. These defendants and defendants 2 to 4's father Shivanna never executed any Agreement of sale as alleged by the plaintiff in the plaint and there was no intention to sell the schedule property in favour of the plaintiff for the alleged sale consideration and also there was no intention to execute Agreement of sale in favour of the plaintiff at any point of time. The defendants 2 to 4 alongwith their father late Shivanna obtained a loan amount of sum of Rs.40,000/- only from the plaintiff and only as security, the plaintiff obtained signatures of the defendants 2 to 4 and their father on the blank stamped paper which is now converted and created to the alleged agreement of sale dated 14.08.06."

¶54

9 - NC: 2023:KHC:39586 RSA No. 817 of 2016

¶55

The Appellate Court has disbelieved the defence set up by the defendants that signatures are secured on the blank stamp papers only on the ground that there is no cross examination by the defendants on this point. Even if there is cross examination on this vital issue, the Appellate Court ought to have meticulously examined the suit agreement, vide Ex.P.1. The manner in which the disputed agreement is drafted and signatures are secured, coupled with the counter evidence let in by the defendants to demonstrate that the suit property is already mortgaged with the State Bank of Mysore, both the Courts erred in not properly appreciating and examining as to whether defendants really intended to sell the suit property under Ex.P.1. On examining the entire material on record, the stand taken by the defendants stands probablised.

¶56

Be that as it may. The findings recorded by the Appellate Court on issue No.2 and the reasons assigned by the Appellate Court do not warrant any interference at the

¶57

10 - NC: 2023:KHC:39586 RSA No. 817 of 2016

¶58

hands of this Court. Admittedly, the suit agreement is dated 14.08.2006 and the time stipulated to complete the transaction is two months. In plaint at paragraph No.4, the plaintiff has admitted in unequivocal terms that he was notified by the defendants on 10.10.2006 in regard to the loan availed by them by hypothecating the suit schedule property. If these facts were brought to the notice of the plaintiff on 10.10.2006, there is absolutely no explanation forthcoming as to why the plaintiff kept quiet until November 2007. There is absolutely no material indicating that the plaintiff was ever ready and willing to perform his

¶59

part of contract. The Trial Court has not properly appreciated the evidence relating to readiness and willingness. The Trial Court having superficially assessed the evidence, has come to conclusion that the plaintiff has succeeded in establishing his readiness and willingness. The Appellate Court has rightly reversed the findings recorded by the Trial Court on issue No.2.

¶60

11 -

¶61

NC: 2023:KHC:39586 RSA No. 817 of 2016

¶62

The evidence let in by the defendants, coupled with admissions at paragraph No.4 of the plaint, clearly reveal that suit property is already hypothecated with the scheduled Bank and the Bank has a first charge over the suit property. Therefore, this Court is of the view that the Trial Court erred in exercising discretion in favour of the plaintiff without examining the factual matrix in the case on hand. Therefore, the Appellate Court was justified in reversing the judgment and decree of the Trial Court. The decree ordering refund of earnest money with interest at 9% p.a has adequately compensated the plaintiff and no serious prejudice is caused to the plaintiff on account of denial of relief of specific performance on contract.

¶63

Therefore, no substantial question of law would arise for consideration. The regular second appeal is devoid of merits and accordingly stands dismissed .

¶64

The respondents/defendants shall deposit the earnest

¶65

money received by them along with interest at a rate of

¶66

12 -

¶67

NC: 2023:KHC:39586 RSA No. 817 of 2016

¶68

9% p.a., within a period of two months from the date of

¶69

receipt of certified copy of this order.

¶70

In view of dismissal of second appeal, all pending

¶71

applications, if any, do not survive for consideration and stand disposed of.

¶72

Sd/JUDGE

¶73

HDK List No.: 1 Sl No.: 7 CT: BHK

Parameshwara S v. Subbammannamma

Case brief

What is this about?

What did the court decide?

Parameshwara S v. Subbammannamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Sreenivasa Vs Manjunatha

Sri Sonnappa Vs Smt Sujaya

Smt B M Honnamma Vs Sri P P Poonacha

Smt. Chinnamma Vs the Chairman

Smt H G Krishnakumari Vs the Divisional Controller

Sri. C. Thimmegowda Vs Sri. C. Sriranga