Dismissed

Shri. Pradeep Sundar Shetty v. Smt Laxmibai C/O Demanna Patil Alias Gowda

Karnataka HC3 Sept 2024RSA/100449/2024

Case brief

AI extract

What is this about?

This second appeal challenges a lower court decision dismissing a suit for specific performance of contract. The High Court held that while the first appellate court correctly dismissed on limitation, it committed an error in decreeing the trial court's order. The court ultimately dismissed the appeal finding no discretion to grant specific performance due to lack of readiness and willingness.

What did the court decide?

Second appeal dismissed at admission stage confirming that the suit should not have been decreed for specific performance.

Shri. Pradeep Sundar Shetty Vs Smt Laxmibai C/O… — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR SECOND APPEAL NO. 100449 OF 2024 (INJ)

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BETWEEN:

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SHRI PRADEEP SUNDAR SHETTY, AGE: 45 YEARS, OCC: AGRICULTURE R/O K.C CIRLCE, HALIYAL ROAD, TQ: HALIYAL, PO: DANDELI, DIST: UTTAR KANNADA-581325

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…APPELLANT

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(BY SRI VENKATESH M. KHARVI, AND SMT. DIVYA ACHARI, 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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SMT. LAXMIBAI C/O DEMANNA PATIL @ GOWDA, AGE: 65 YEARS, OCC: AGRICULTURIST, R/O KHALAGINAKOPPA, PO. DODNALLI, TQ: HALIYAL, DIST: UTTAR KANNADA (SINCE DECEASED BY LRS DEFENDANTS NO. 2 TO 4)

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SHRI. BHEEMARAY DEMANNA PATIL @ GOWDA, AGE: 45 YEARS OCC: AGRICULTURIST, R/O KLAGINAKOPPA, TQ: HALIYAL DIST. UTTAR KANNADA.

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2 - NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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SMT. VITTAKKA C/O BHAGHAVATHAKAR AGE: 42 YEARS, OCC: AGRICULTURIST R/O SHEKANKATTA, TQ: HALIYAL, DIST: UTTAR KANNADA.

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SMT. NIGANVVA C/O HUVANNA SAKALI, AGE: 40 YEARS, OCC: AGRICULTURIST R/O SHIVAPUR, TQ: HALIYAL DIST: UTTAR KANNADA.

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…RESPONDENTS

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(BY SRI G.G.GADAG AND SRI H.S. NAYAK, ADVOCATES FOR R2)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE ORDER PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HALIYAL DATED 28.03.2024 IN R.A.NO.4/2022 AND CALL FOR ENTIRE RECORD ON THE FILE OF THE CIVIL JUDGE AND JMFC, HALIYAL IN O.S.NO.86/2015 DATED 10.03.2022.

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

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3 - NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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ORAL JUDGMENT

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This second appeal is filed by the plaintiff challenging the judgment and decree dated 28.03.2024 passed in R.A.No.04/2022 by the Senior Civil Judge and JMFC Haliyal, (for short, ‘the first appellate Court), which reversed the judgment and decree dated 10.03.2022 passed in O.S. No.86/2015 by the Civil Judge JMFC, Haliyal (for short, ‘the trial Court’).

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For the purpose of convenience, the ranking of the parties is referred to as per their status before the trial Court.

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The plaintiff has filed suit for specific performance of contract contending that the defendants are the owners of the property and defendants have offered suit lands for sale. Therefore, an agreement of sale was executed between the plaintiff and the defendants for a total sale consideration of Rs.4,51,000/-. Out of which the plaintiff has paid a sum of Rs.2,51,000/- as earnest amount on various dates. But the defendants have not executed a registered sale deed. Therefore, the plaintiff has filed suit for specific performance of contract. Defendants have filed a written statement and contended that they have received checks for earnest amount

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4 - NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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of Rs.2,51,000/- by way of two cheques. But they have been dishonored for ‘Insufficient Funds’. Hence, the defendants have issued legal notice to the plaintiff dated 01.12.2007, thereby canceling the agreement of sale. Further plaintiff has not taken any steps to get execution of the sale deed during the lifetime of Demanna S/o Yallappa Patil. But after his death in the year 2015, the suit was filed. Therefore, he prays to dismiss the suit.

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The trial Court after framing issues and receiving evidence on record, has decreed the suit and thereby granted relief of decree of specific performance contract directing the defendants to execute a registered sale deed in favour of the plaintiff.

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Being aggrieved by this, the defendants have preferred the appeal before the first appellate Court and the first appellate Court has allowed and set aside the judgment of the decree passed by the trial Court on the grounds that the suit filed by the plaintiff is barred by limitation. Therefore, dismissed suit as barred by limitation.

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5 - NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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Being aggrieved by this, the plaintiff has preferred the present second appeal by raising various grounds and stating the substantial question of law involved in the appeal.

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Learned counsel for the plaintiff/appellant submitted that the first appellate Court has committed an error by holding that the suit filed is barred by limitation. But in fact, the plaintiff issued a legal notice on 31.03.2015 calling upon the defendants to execute the sale deed, and the defendants have replied to the notice on 08.07.2015 refusing to execute the sale deed. Therefore, from 08.07.2015 the limitation period starts to file a suit as per Article 54 of the limitation act, and thus the suit filed by the plaintiff is within the period of limitation. Therefore, he prays to set aside the judgment and decree passed by the first appellate Court and confirm the judgment and decree passed by the trial Court.

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This Court has perused the findings and observations made by both the Courts below in the light of the facts, circumstances, and evidence discussed therein. Admittedly, the defendants are the owners of the suit property. The total extent of land is 12 acres, 26 guntas, out of which the southern side of 6 acres of land was agreed to be sold out to

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the plaintiff as per the agreement of sale deed dated 09.07.2007. The total sale consideration amount is Rs.4,51,000/- for the whole extent of 6 acres of land. Though the plaintiff has contended that he has paid the earnest amount of Rs.2,51,000/- by way of two cheques, but the defendants have contended that two cheques were dishonoured. Therefore, the defendants have issued legal notice on 01.12.2007 to the plaintiff canceling the agreement of sale. Thereafter, the plaintiff and the defendants during the lifetime of Demanna have executed a deed of understanding dated 25.07.2008. The plaintiff is categorizing this document as a supplementary agreement of sale, and the plaintiff has given possession of the land, and on 18.09.2010 Demanna died. Thereaftewords, on 31.03.2015 the plaintiff issued legal notice to the defendants calling upon the defendants to execute a registered sale deed, but the defendants have replied on 08.07.2015 to the plaintiff refusing to execute registered sale deed and the suit was filed on 28.07.2015. On these admitted facts, learned counsel for plaintiff submitted that the suit filed is within the period of limitation as per Article 54 of the limitation Act.

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7 - NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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Here, considering the chronological events as discussed above, a deed of understanding was executed on 25.07.2008. But later on, the plaintiff has not called upon either Demanna during his lifetime or the defendants who are legal heirs of Demanna to execute a registered sale deed. Only on 31.03.2015, the plaintiff issued a legal notice calling upon the defendants to execute the registered sale deed. Therefore, this attempt is made by the plaintiff is nothing but to get revival of cause of action and with an intention to bring the suit to depict it is within the period of limitation and notice was issued on 31.03.2015 than the suit is filed. Therefore, nonaction on the part of the plaintiff keeping silence over the matter from 25.07.2008 on which date the deed of understanding was executed, and till issuing legal notice on 31.03.2015 the plaintiff was silent and has not shown diligence to get execution of the sale deed. Even the plaintiff has not produced any evidence to prove that he was ready and willing to perform his part of the contract during these years. Therefore, plaintiff has failed to prove his readiness and willingness as required under Section 16(c) of the Specific Relief Act (for short, the Act’).

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8 - NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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Furthermore, Section 20 of the Act, stipulates about discretionary powers vested in the Court to grant decree for specific performance of contract. As per Section 20 of the Act, though all the ingredients are proved and grant of decree is lawful to do so, the court still has discretion in granting decree or not. But such discretion shall be exercised according to the parameters enumerated under Section 20 of the Act. The agreement is dated 09.07.2007 and now the suit is filed in the year 2015 after a lapse of 8 years to get the land just for Rs.4,51,000/- to the extent of 6 acres, which is nothing but causing hardship to the defendants.

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Furthermore, defendants want this land for the purpose of cultivating , but the plaintiff wants this land for the purpose of quarrying activities, as it is revealed in Ex.P.2 deed of understanding. Comparing these two aspects, the plaintiff wants the land for quarrying activities, but the defendants want the land for cultivation purposes, therefore, if certainly a decree is granted, then it is amounting to an unfair advantage by the plaintiff over the defendants besides causing hardship to the defendants. Furthermore, grant of decree for specific performance of contract after lapse of more than 15 years for

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- 9 - NC: 2024:KHC-D:12779 RSA No. 100449 of 2024

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the sale consideration amount as it was agreed in the year 2007 is nothing but amounting to arbitrary.

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Therefore, considering all these parameters discussed above, it is a fit case not to exercise discretion in favour of plaintiff by granting a decree for specific performance of contract. Therefore, the trial court has committed an error in decreeing suit. Though the first appellate Court has dismissed the suit on the ground of limitation but the overall result that the plaintiff is not entitled to discretionary relief is found to be correct, justifiable, and legal. Therefore, there is no merit found in the appeal, and much less, there is no substantial question of law involved to consider the appeal. Hence the appeal is liable to be dismissed at the admission stage itself. Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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AC List No.: 2 Sl No.: 12

Shri. Pradeep Sundar Shetty v. Smt Laxmibai C/O Demanna Patil Alias Gowda

Case brief

What is this about?

What did the court decide?

Shri. Pradeep Sundar Shetty v. Smt Laxmibai C/O Demanna Patil Alias Gowda

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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