Dismissed

Mr M L Shivanna v. Mr Ramaiah

Karnataka HC12 Mar 2024RSA/1214/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal challenging the decree for specific performance of an agreement of sale. The court held that the defendants' defense that the agreement secured a chit fund loan was unproven and their witness failed to substantiate the claim.

What did the court decide?

The appeal was dismissed, confirming the judgment and decree of the Trial Court and the First Appellate Court.

Mr M L Shivanna Vs Mr Ramaiah — Specific Performance | Karnataka HC (2024)

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1 - NC: 2024:KHC:10184 RSA No. 1214 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1214 OF 2022 (SP)

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BETWEEN:

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MR. M.L.SHIVANNA, S/O LATE LINGAIAH, AGED ABOUT 75 YEARS,

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MR. CHANDRASHEKAR, S/O MR. M.L.SHIVANNA, AGED ABOUT 37 YEARS,

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BOTH ARE R/AT MAREGOWDANADODDI VILLAGE, KOOTAGAL HOBLI, RAMANAGARA TALUK, PIN-562 201.

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…APPELLANTS

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(BY SRI. ARUN KUMAR A.S., ADVOCATE FOR SRI. PARAMESWARAPPA C., ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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MR. RAMAIAH, S/O REVANNA, AGED ABOUT 59 YEARS, R/AT ARALIMARADADODDI VILLAGE, KOOTAGAL HOBLI, RAMANAGARA TALUK AND DISTRICT-562 108.

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SMT. BHAGYAMMA, W/O NANJUNDAIAH, AGED ABOUT 47 YEARS, R/AT GUDDAHALLI VILLAGE, HAGALAHALLI DAKALE, KASABA HOBLI, RAMANAGARA TALUK AND DISTRICT-562128.

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NC: 2024:KHC:10184 RSA No. 1214 of 2022

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SMT. GEETHA, W/O NAGARAJU. AGED ABOUT 39 YEARS. R/T KALLIGOWDANADODDI VILLAGE, KASABA HOBLI, RAMANAGARA TALUK AND DISTRICT-562 119.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.04.2022 PASSED IN RA.NO.160/2019 (OLD RA NO.59/2013) ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.11.2012 PASSED IN OS.NO.329/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, RAMANAGARA. TRIAL COURT DECREED THE SUIT. APPELLATE COURT DISMISSED THE APPEAL. THE SUIT FOR SPECIFIC PERFORMANCE.

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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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This appeal is filed by the defendants aggrieved by the judgment and decree dated 24.11.2012 passed in O.S.No.329/2009 on the file of Prl. Civil Judge and J.M.F.C, Ramanagara (hereinafter 'the Trial Court') and which is confirmed by the judgment and order dated 04.04.2022 passed in R.A.No.160/2019 (Old R.A.No.59/2013) on the file of III Additional District and Sessions Judge, Ramanagara (hereinafter 'the First Appellate Court').

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NC: 2024:KHC:10184 RSA No. 1214 of 2022

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The above suit is filed by the plaintiff seeking relief of specific performance of agreement of sale dated 27.09.2008. The case of the plaintiff is that the defendants are the owners in possession of the suit schedule property and in order to meet their financial requirements, they had agreed to sell the same in favour of the plaintiff for a sum of Rs.1,30,000/- and accordingly had executed a registered agreement of sale on 27.09.2008. That the plaintiff paid a sum of Rs.1,25.000/towards the part payment for the sale consideration. Defendants had agreed to receive the balance sale consideration of Rs.5,000/- within a period of 15 months and had agreed to execute a registered deed of sale in favour of the plaintiff. That despite repeated requests and issuance of legal notice, defendants did not execute the sale deed constraining the plaintiff to file the above suit for specific performance.

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In response, defendants appeared through their counsel and filed written statement denying the execution of the agreement of sale. It is contended that the plaintiff and the defendant No.2 were the members of a chit fund business with one Thimmesh and since defendant No.2 was in urgent need of money, the plaintiff had agreed that the defendant No.2 could

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4 - NC: 2024:KHC:10184 RSA No. 1214 of 2022

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withdraw the entire chit amount and he repay the said amount subsequently to the plaintiff. It is further contended that as a token of security to the said transaction the defendant Nos.1 and 2 had executed an agreement of sale dated 27.09.2008 in the office of Sub-Registrar in the presence of witnesses namely Shivaramaiah and the Scribe Shivarudraiah. It is further contended that the wife and daughter of defendant Nos.1 and 2 were not present and have never put their L.T.Ms to the said agreement. Hence, sought for dismal of the suit and further agreeing to repay the sum of Rs.1,25,000/- received by the defendant Nos.2 from the plaintiff.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1. Whether the plaintiff proves that the defendants have executed an agreement of sale dated:27.09.2008 and thereby agreed to sell the suit schedule property for a sale consideration Rs.1,30,000/-?

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2. Whether the plaintiff proves that he has always ready and willing to perform his part of contract.?

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3. Whether the plaintiff is entitled for the decree as prayed?

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4. What Order?"

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The plaintiff examined himself as PW1 and two

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additional witnesses have been examined in favour of the

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5 - NC: 2024:KHC:10184 RSA No. 1214 of 2022

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plaintiff as PW.2 and PW.3 exhibited 9 documents marked as Ex.P1 to Ex.P9. In order to prove their defence, defendant No.1 examined himself as DW1. one additional witnesses has been examined in favour of the defendants as DW.2 and did not produce any documentary evidence. On appreciation of the evidence the Trial Court answered issue Nos.1 to 3 in the affirmative and consequently decreed the suit as sought for.

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Being aggrieved by the aforesaid judgment and decree defendant No.1 and 2 filed an appeal in R.A.No.160/2019 (Old R.A.No.59/2013) before the First Appellate Court. Considering

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the grounds urged the First Appellate Court framed the following points for its consideration:

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"1). Do the appellants/defendants, for the reasons assigned in the grounds of appeal, prove and establish that the trial court has passed an erroneous judgment in favour of plaintiff/respondent?

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2). Is there any scope to interfere with the impugned judgment?

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3). What order?"

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On re-appreciation of the evidences, the First Appellate

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Court answered point Nos.1 to 2 in the negative and consequently dismissed the appeal confirming the judgment

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NC: 2024:KHC:10184 RSA No. 1214 of 2022

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and decree passed by the Trial Court. Being aggrieved by the same appellant is before this Court.

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Sri.C.Parameswarappa, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that though the defendants have admitted the execution and registration of the alleged agreement of sale dated 27.09.2008, it is their specific case that said agreement was executed as a security for the discharge of loan that was availed by the defendant No.2 from the plaintiff. It is his further submission that, the Trial Court and the First Appellate Court have failed to appreciate the evidence of the witness examined as DW.2 to prove the transaction being monetary transaction arising out of chit fund business. He further submits that even otherwise the suit could not have been filed as the agreement contemplated 15 months duration for the performance of contract by the defendants, while the notice was issued in the 14^th month and the suit was filed even before the expiry of 15 months. Thus he submits on these counts the Trial Court and the First Appellate Court have erred in decreeing the suit, giving rise to substantial question of law.

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NC: 2024:KHC:10184 RSA No. 1214 of 2022

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Heard. Perused the records.

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Since the defendants have admitted in unambiguous terms that they have indeed executed and registered agreement of sale dated 27.09.2008 by receiving a sum of Rs.1,25,000/- from the plaintiff, as rightly taken note of by the Trial Court and the First Appellate Court burden is heavily on the defendants to prove that the said transaction was one for the purpose of securing the financial assistance avail by the defendant No.2 from the plaintiff. That though the defendants have set-up a theory of chit funds transaction being run by one Thimmesh in which the plaintiff had agreed defendant No.2 to withdraw the money and that the plaintiff would pay on his behalf and that the defendant No.2 would repay the said amount to the plaintiff later, no evidence in this regard is produced. The lone witness Dw.2 who has been examined by the defendant No.1 in justification of their contention of the loan transaction, as rightly taken note of by the Trial Court at paragraph No.11 of its judgment, has admitted that he does not know anything about the agreement and he does not know fully about the chit fund business. Except the said witness, no other witness has been examined by the defendants. If at all

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8 - NC: 2024:KHC:10184 RSA No. 1214 of 2022

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the agreement was only to secure the financial assistance in the nature of payment of chit fund amount purportedly run by one Thimmesh, nothing prevented the defendants to examine said Thimmesh who was purportedly running the chit fund business.

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Be that as it is. The only defence set-up by the defendants is the loan transaction. Not having been proved the same in the manner known to law, the Trial Court and the First Appellate Court have come to the just and proper conclusion of plaintiff having been proved and established execution and registration of the agreement of sale and payment of Rs.1,25,000/- towards sale consideration. The plaintiff having paid the substantial amount and being liable to pay only Rs.5,000/-, there was nothing remained to be perform from his side. That apart the plaintiff has admittedly caused issue of notice much prior to the stipulated period of 15 months and demand made in said notice has not been complied with by the defendants.

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No irregularity or infirmity can be found with the reasoning and conclusion arrived at by the Trial Court and

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NC: 2024:KHC:10184 RSA No. 1214 of 2022

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confirmed by the First Appellate Court. No substantial question

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of law would arise for consideration in this appeal.

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Accordingly, this appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First

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Appellate Court.

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Sd/JUDGE

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Mr M L Shivanna v. Mr Ramaiah

Case brief

What is this about?

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Mr M L Shivanna v. Mr Ramaiah

Case brief

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