Appeal against partial decree in suit for specific performance. Court held agreement unenforceable due to land acquisition. Trial Court rightly awarded refund of earnest money with interest. Appeal dismissed.
Refund of Rs.50,000/- with interest at 6% p.a. within three months.
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 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 252 OF 2015 (SP)
BETWEEN:
M.P. SRINIVAS, SINCE DECEASED,
Digitally signed by KAVYA R Location: High Court of Karnataka
1(C). KUM. ARSHITHA, D/O LATE M.P. SRINIVAS, AGED ABOUT 11 YEARS,
SINCE NO.1(B) AND 1(C) ARE MINORS REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN SMT. SAVITHA ANA ALL ARE RESIDING AT NO.22/A, 4TH CROSS, MARUTHI NAGAR, CHANDRA LAYOUT, BANGALORE - 560 072.
…APPELLANTS
(BY SRI. KEMPANNA, ADVOCATE)
AND:
C. OMKARAPPA, S/O K. CHANNAPPA, AGED ABOUT 57 YEARS, R/AT NO.63/A, WC ROAD, LIC COLONY II STAGE, BHIMAJYOTHI NAGAR, BANGALORE - 560 086.
…RESPONDENT
(VIDE ORDER DATED 18.01.2024, NOTICE TO RESPONDENT IS HELD SUFFICIENT)
THIS RFA IS FILED U/S. 96 R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.08.2014 PASSED IN OS NO.363/2004 ON THE FILE OF THE XXV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREED THE SUIT FOR SPECIFIC PERFORMANCE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
Though the appeal is listed for admission, with the
consent of the learned counsel for the appellant, it is taken up for final disposal.
This appeal is filed by the legal heirs of the original plaintiff under Section 96 read with Order 41 Rule 1 of the CPC against the judgment and decree dated 30.08.2014 passed by the XXV Additional Civil and Sessions Judge, Bangalore in O.S.No.363/2004.
NC: 2024:KHC:44301 RFA No. 252 of 2015
agreed to execute the sale deed within three months. Under the agreement, the plaintiff had paid Rs.30,000/on the same day as advance. Subsequently, on 10.04.2003, the plaintiff paid another Rs.20,000/- to the defendant towards further advance. Even after completion of three months, the defendant did not execute the sale deed; hence, on 08.09.2003, legal notice was issued calling upon defendant to execute the sale deed. In response, the defendant also issued legal notice as per Ex.D.4. Further, on 03.12.2003, the plaintiff issued another legal notice to the defendant to execute the sale deed. Hence, the suit was filed.
was acquired by the BDA. Therefore, the agreement to sell cannot be enforceable. He further contended that the plaintiff himself had not cooperated to execute the sale deed. Hence, prayed for dismissal of the suit.
6. Based on the pleading, the Trial Court framed
the following issues:
"1. Whether plaintiff proves that he was/is always ready and willing to perform his part of the contract?
2. Whether the plaintiff proves that defendant failed to comply with the terms and conditions of the sale agreement within the agreed period?
3. Whether defendant proves that the sale agreement is cancelled and advance amount is forefieted?
4. Whether defendant proves that BDA acquired and has taken possessing of the suit property?
5. Whether suit is bad for non-joinder of necessary party?
6. Whether Court fee paid is insufficient?
7. Whether plaintiff is entitled to the relief of specific performance of contract?
8. What order or relief?"
himself as P.W.1 and got marked documents vide Exs.P.1
to 9. While defendant examined himself as D.W.1 and got
marked documents vide Exs.D.1 to 7.
NC: 2024:KHC:44301 RFA No. 252 of 2015
BDA for acquisition, he entered into an agreement to sell with the plaintiff. Such being the case, the Trial Court considering the facts, ought to have granted double the earnest money. He further contended that the defendant till today not paid the money. Hence, prayed for allowing the appeal.
NC: 2024:KHC:44301 RFA No. 252 of 2015
plaintiff, the defendant on 05.09.2003 replied to the legal notice stating the plaintiff has not come forward to execute the sale deed within three months and the now the suit schedule property has been acquired by the Government. Hence, agreement of sale cannot be enforceable. The State Government had issued preliminary notification on 08.02.2003, which is not within the knowledge of the plaintiff. Later, the Government issued the final notification. The plaintiff could have verified the documents with the concerned authorities before entering into an agreement of sale. No documents are produced by the plaintiff to substantiate that he has obtained a legal opinion before entering into an agreement of sale.
ready and willing to perform the part of the contract, the sale agreement itself is not enforceable since the property in question has been acquired by the BDA for forming the layout. Such being the case, the issuing of legal notices and payment of an advance amount do not survive for
consideration. The plaintiff, at his own risk, undertook to purchase the property and paid Rs.50,000/- as advance amount. Even in the trial, the plaintiff did not enquire about the averment and sought for decreeing the suit for specific performance of contract. Hence, the agreement of sale cannot be enforceable. Therefore, answering issues No.1 and 2 in the affirmative by the Trial Court that the plaintiff had entered into an agreement of sale and he is ready to perform his part of the contract is of no consequence and does not warrant any interference by this Court. As the property is already acquired by the State Government, execution of the sale deed does not arise. Hence, the plaintiff is only entitled for the refund of earnest money.
notification by the Government on 08.04.2003, the plaintiff, at his risk, has paid the further amount. Hence, awarding double the amount as damages does not arise. The Trial Court has rightly decreed the suit in part and directed the defendant to pay earnest money of Rs.50,000/- as damages with interest at 6% p.a. within three months, failing which the plaintiff can go for the execution of the decree.
Accordingly, the appeal is devoid of merits and stands dismissed.
In view of dismissal of regular first appeal, all pending applications, if any, do not survive for consideration and stands disposed of.
Sd/(K.NATARAJAN) JUDGE
HDK List No.: 1 Sl No.: 31 CT: BHK
2 issues framed by the court
Whether the sale agreement remains enforceable given the government acquisition of the property subsequent to the agreement?
Whether the Trial Court rightly awarded refund of earnest money with interest instead of specific performance or double damages?
M.P. SRINIVAS, SINCE DECEASED, SAVITHA, MASTER CHANDU KUMAR, KUM. ARSHITHA
C. OMKARAPPA
K. NATARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
