Dismissed

Hanumantappa S/O. Mallappa Kuppelur v. Hanumantappa S/O. Rangappa Tippannavar

Karnataka HC16 Jul 2024RSA/100284/2018

Case brief

AI extract

What is this about?

This second appeal challenged a decree refusing specific performance of an agreement of sale and ordering refund of earnest money. The High Court dismissed the appeal, finding no substantial question of law as the lower courts exercised its discretion under the Specific Relief Act after appreciating the record that the plaintiff was not ready and willing to complete the transaction.

What did the court decide?

The appeal was dismissed as being devoid of merits at the stage of admission itself.

Hanumantappa S/O. Mallappa Kuppelur Vs Hanumantappa… — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 100284 OF 2018 (SP-)

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BETWEEN:

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HANUMANTAPPA S/O. MALLAPPA KUPPELUR @ TALWAR, AGE: 59 YEARS, OCC: AGRICULTURE, R/O. KUPPELUR, NOW AT KIRAGEI, TQ: HIREKERUR, DIST:HAVERI. 581110

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…APPELLANT

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(BY SRI PATIL M. H., SRI HARSHAWRDHAN M. PATIL, ADVOCATES)

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AND:

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Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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HANUMANTAPPA S/O. RANGAPPA TIPPANNAVAR AGE: 79 YERS, OCC:AGRICUALTURE, R/O. MEDUR, TQ:HIREKERUR, DIST:HAVERI.

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…RESPONDENT

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(BY SRI DINESH M. KULKARNI, ADVOCATE)

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THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HIREKERUR IN R.A.NO.17/2016 DATED 05.03.2018 BY CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC., HIREKERUR IN O.S.NO.151/2007 DATED 05.12.2015, BY ALLOWING THIS APPEAL BY DECREEING THE SUIT OF THE PLAINTIFF.

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

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NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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JUDGMENT

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The present second appeal is filed by plaintiff under Section 100 of Code of Civil Procedure, 1908¹ challenging the judgment and decree dated 05.03.2018 passed in R.A No.17/2016 by the Senior Civil Judge & JMFC, Hirekerur² and the judgment and decree dated 05.12.2015 passed in O.S No.151/2007 by the Additional Civil Judge and JMFC, Hirekerur³ , whereunder the suit for specific performance has been partly decreed by the Trial Court, wherein, it has been held that the plaintiff is entitled for recovery of the earnest money of ₹27,900/- together with interest at the rate of 6% per annum, which has been affirmed by the First Appellate Court.

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The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.

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The relevant facts necessary for consideration of the present appeal are that the defendant is the father-in-law and the plaintiff is the son-in-law. The defendant is the owner of the suit property. It is the case of the plaintiff that the

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1 Hereinafter referred to as ‘CPC’

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2 Hereinafter referred to as the ‘first appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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parties entered into an agreement of sale dated 21.02.2006, wherein, the defendant agreed to sell the suit property i.e., R.Sy.No.49, measuring 05-acres⁴ for a total sale consideration of ₹28,000/- and the earnest money of ₹27,900/- was paid by the plaintiff to the defendant on the said date. That the defendant was required to execute the Sale Deed and complete the sale transaction, when the plaintiff requires the same to be executed. That the plaintiff has always been ready and willing to perform his part of the contract. That the plaintiff issued a legal notice on 16.08.2007, which was served on the defendant on 22.08.2007. However, since the defendant did not complete the sale transaction, the plaintiff has filed the suit.

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The defendant entered appearance and filed his written statement denying the case of the plaintiff. It is contended that he did not intend to sell the suit property at any point of time, and that the market value of the suit property is more that ₹60,000/- in the year 2002, and the suit property is a well fertilized land. That the defendant is an illiterate person and the plaintiff with an intent to grab the property has created and concocted an agreement of sale. That the defendant has

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4 Hereinafter referred to as the ‘suit property’

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4 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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not executed any agreement of sale and the plaintiff has forged the signature of the defendant. That there is no necessity for the defendant to sell the suit property to the plaintiff. That the defendant being an illiterate, the plaintiff used the innocence of the defendant, created and concocted the agreement of sale. Hence, the defendant sought for dismissal of the suit.

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Consequent to the pleadings of the parties, the Trial

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Court framed the following issues:

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i. “Whether the plaintiff proves that the defendant has agreed to sell the suit property to the plaintiff for Rs.28,000/and defendant has received Rs.27,900/- as advance amount and executed agreement of sale dated 21.02.2006 in favour of plaintiff and defendant has delivered the possession of the suit property to the plaintiff?

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ii. Whether the plaintiff proves that he is ever ready and willing to perform his part of contract?

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iii. Whether the plaintiff is entitled to get sale deed executed?

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iv. Whether the plaintiff is entitled for alternative relief of refund of earnest money?

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v. Whether the plaintiff is entitled for interest at the rate of 18% p.a. on earnest money?

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vi. What order or decree?”

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The plaintiff examined himself as PW.1 and

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examined two other witnesses as PW.2 and PW.3. Ex.P1 to

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5 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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Ex.P3 has been marked in evidence. PW.4 has been examined through a Commissioner who has indentified the signature of the defendant on Ex.P3 as Ex.P3(b) and Ex.P3(c). The defendant examined himself as DW.1. Ex.D1 and Ex.D2 has been marked in evidence.

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The Trial Court, by its judgment and decree dated 05.12.2015, partly decreed the suit and passed the following order:

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“The suit filed by the plaintiff is hereby partly decreed with costs.

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The plaintiff is entitle for recovery of his earnest money some of Rs.27,900/- with interest of 6% per annum from the date of filing this suit.

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Defendant is hereby directed to repay the earnest money with interest to the plaintiff within 3 months of this order.

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Draw decree accordingly.”

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Being aggrieved, the plaintiff preferred R.A

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No.17/2016. The defendant entered appearance before the

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First Appellate Court and contested the same. The First

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Appellate Court framed the following points for consideration:

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i. “Whether the Trial Court is justified in decreeing the suit in part and directed the defendant to repay the earnest money?

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6 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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ii. Whether the judgment and decree of the Trial Court is capricious, devoid of merits, erroneous and warrants for the interference by the instant court?

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iii. What order?”

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The First Appellate Court by its judgment dated 05.03.2018, dismissed the appeal with cost and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed by the plaintiff.

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It is the contention on behalf of the appellant that both the Courts having recorded the findings that the agreement has been proved and having regard to the fact that the plaintiff has paid almost the entire sale consideration, both the Courts were erred in dismissing the suit. Hence, the said concurrent findings are required to be set aside.

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Per contra, learned counsel for the respondent/defendant justifies the judgment and decree passed by the Trial Court and the First Appellate Court and submits that the Trial Court has exercising its discretion in refusing to order for specific performance, which has been affirmed by the First Appellate Court. Hence, it is submitted that the same is not required to be interfered by this Court in the present appeal.

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7 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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The submissions of both the learned counsels have been considered and the material on record has been perused.

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It is forthcoming that the Trial Court has recorded a finding that the plaintiff has proved execution of the agreement, and the said findings has not been challenged by the defendant. Hence, the said aspect of the matter is not required to be considered in the present appeal. The Trial Court, while considering Issue No.2, has held that the plaintiff is ready and willing to perform his part of the contract and has accordingly answered Issue No.2 in the affirmative.

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However, while considering Issue Nos.3 to 5, the Trial Court has noticed that the transaction between the parties is of the year 2002, and after lapse of 4 years, Ex.P3 has been executed. It is further held that although the plaintiff has contended that he has been put in possession of the suit property, no oral or documentary evidence is forthcoming to prove the same. Further, while noticing the case of the plaintiff that he has paid more than 95% of the sale consideration, and only a remaining sum of ₹100/- is required to be paid at the time of execution of the Sale Deed, it is noticed that the reasons for not entering into the agreement of sale in the year

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8 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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2002 is not mentioned. Further, noticing the contract of the parties, the Trial Court has recorded a finding that there is a chance that the plaintiff has given financial assistance to the defendant, and for the purpose of surety, Ex.P3 has been executed.

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It is further noticed the contention of the defendant that the market value of the suit property is more than ₹60,000/- at the time of entering into an agreement and there is no chance to sell the same for ₹30,000/-. Noticing the testimony of DW.1, the Trial Court has held that, he has obtained financial assistance from the plaintiff. Considering the material on record, the Trial Court has granted the alternative relief of refund of the earnest money, and has accordingly answered Issue No.3 in the negative, Issue No.4 in the affirmative and Issue No.5 as partly in the affirmative.

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The First Appellate Court while considering the appeal of the plaintiff has noticed that the plaintiff and the defendant are relatives, and the suit property is an agricultural land. Further, it has noticed that pursuant to the judgment of the Trial Court, the defendant has already deposited a sum of ₹42,129/- before the Trial Court. Further, the First Appellate

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9 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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Court has noticed that the meagre balance sale consideration that was required to be paid by the plaintiff, and the fact that the plaintiff did not pay the same from 2002 to 2006 demonstrates that the conduct of the plaintiff itself goes to show that he was not ready to perform his part of the contract. Hence, the First Appellate Court has dismissed the appeal.

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It is forthcoming from the aforementioned that although the Trial Court has recorded a finding that the plaintiff has proved execution of the agreement, in order to adjudicate as to whether specific performance is required to be ordered, the Court has to consider as to whether the plaintiff was ready and willing to complete the transaction as required under Section 16(c) of the Specific Relief Act, 1963⁵ , as well as to consider as to whether the Court is required to exercise its jurisdiction as contemplated under Section 20 of the S.R. Act.

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While considering the said aspects, although the Trial Court has recorded a finding that the plaintiff is ready and willing to complete the sale transaction, while noticing the other factual material on record, the Trial Court has answered Issue No.3 in the negative and Issue No.4 in the affirmative and held

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5 Hereinafter referred to as the ‘S.R.Act’

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10 -

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NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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that the plaintiff is entitled to the alternative relief of refund of the earnest money. While recording the said findings, the Trial Court has noticed that the value of the property is much more than the sale consideration mentioned in the agreement. Further, the Trial Court has also recorded a finding that the admission of DW.1 shows that he has obtained financial assistance from the plaintiff.

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The First Appellate Court while considering the appeal of the plaintiff has noticed that the plaintiff and defendant are near relatives and that the balance sale consideration being meagre one, there was nothing on record to demonstrate as to why the plaintiff did not pay the same for a period of 4 years between 2002 to 2006. Hence, the First Appellate Court also recorded the finding that the plaintiff was not ready to perform his part of the contract.

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It is clear and forthcoming that both the Courts have exercised its discretion in refusing to grant specific performance and ordered for refund of the earnest money deposit. In exercising the said direction, both the Courts have adequately appreciated and re-appreciated the relevant factual matrix.

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11 - NC: 2024:KHC-D:9931 RSA No. 100284 of 2018

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It is further necessary to note that the parties are closely related to one another, and the fact that more than 95% of the sale consideration has been paid as on the date of the agreement, and there is no explanation so as to why the balance sale consideration of ₹100/- was not paid for nearly 4 years. Further, having regard to the basis of the findings recorded by the Trial Court and the First Appellate Court, the same being a result of the discretion that they have exercised as required under Section 16(c) and Section 20 of the S.R. Act, the appellant has failed in demonstrating that the concurrent findings recorded by both the Courts are in any manner contrary to any specific, oral or documentary evidence on record.

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In view of the aforementioned, the appellant has failed in demonstrating that any substantial question of law arises for consideration in the above appeal. Hence, the above appeal is dismissed as being devoid of merits at the stage of admission itself.

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Pmp/List No.: 15 Sl No.: 29

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Sd/JUDGE

Hanumantappa S/O. Mallappa Kuppelur v. Hanumantappa S/O. Rangappa Tippannavar

Case brief

What is this about?

What did the court decide?

Hanumantappa S/O. Mallappa Kuppelur v. Hanumantappa S/O. Rangappa Tippannavar

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

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