Suit for specific performance of an unregistered agreement to sell land; trial court dismissed the suit, first appellate court allowed it in part directing refund of Rs.10 lakhs. In second appeal, the High Court dismissed the plaintiff's appeal, confirmed the trial court decree, and set aside the refund direction.
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NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1581 OF 2021 (SP)
C/W
RSA CROSS OBJECTION NO.7 OF 2023
IN RSA No. 1581/2021
BETWEEN:
SRI. D.S. MANJUNATHA S/O D.R. SHIVARUDRAPPA AGED ABOUT 52 YEARS, R/AT CHAMARAJ PET DAVANAGERE -577 001.
…APPELLANT
(BY SRI. GANESH GOUDA, ADVOCATE FOR SRI. GANAPATI BHAT VAJRALLI, ADVOCATE)
AND:
Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka
NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
HARIHAR TOWN DAVANAGERE DISTRICT - 577 601.
…RESPONDENTS
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER XLII RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.09.2020 PASSED IN R.A.No.67/2015 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.03.2015 PASSED IN OS No.13/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHARA.
IN RSA.CROB NO.7/2023
BETWEEN
NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
ALL ARE RESIDING AT TEMPLE ROAD, HARIHAR TOWN, DAVANAGERE DISTRICT - 577601.
...CROSS OBJECTORS
(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)
AND
SRI. D.S. MANJUNATHA S/O D.R. SHIVARUDRAPPA AGED ABOUT 52 YEARS, R/AT CHAMARAJ PET DAVANAGERE -577 001.
…RESPONDENT
(BY SRI. GANESH GOWDA., ADVOCATE FOR SRI. GANAPATI BHAT VAJRALLI, ADVOCATE)
THIS RSA CROB IN RSA 1581 OF 2021 IS FILED UNDER ORDER XLI RULE 22 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.09.2020 PASSED IN R.A. NO.67/2015 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.03.2015 PASSED IN O.S.NO.13 OF 2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHARA.
THIS RSA AND RSA CROB. COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This RSA No.1581 of 2021 is filed by the plaintiff and RSA Crob. No.7 of 2023 is filed by the defendants, challenging the judgment and decree dated 09.09.2020 passed in RA No.67 of 2015 on the file of the Principal District and Sessions Judge at Davanagere allowing the appeal in part and directing the defendants to repay amount of Rs.10 lakhs within three months from the date of the judgment and accordingly, modified the judgment and decree dated 20.03.2015 passed in OS No.13 of 2011 on the file of the Senior Civil Judge, Harihara, dismissing the suit of the plaintiff.
was always ready and willing to perform his part of contract, however, the defendants were postponing the registration of the Sale Deed and as such, the plaintiff has issued legal notice dated 14.10.2010 calling upon the defendants to execute the registered Sale Deed in respect of the subject matter of the land. It is further stated that the defendants have issued evasive reply to the said legal notice issued by the plaintiff and as such, the plaintiff has filed OS No.13 of 2011 before the Trial Court, seeking relief of specific performance of contract inter-alia sought
for damages of Rs.10 lakhs with interest at 18% per annum.
appellant contended that both the courts below have not properly evaluated the material on record as the Agreement of Sale dated 20.11.2009 produced at Ex.P1 is proved before the Trial Court with regard to sale of subject matter of the land and that apart, the appellant/plaintiff
has paid substantial amount of Rs.10 lakhs as advance amount to the defendants to execute the registered Sale
Deed and the plaintiff has examined PW2-witness to the Agreement of Sale (Ex.P1) and therefore, it is contended that the both the courts below have not properly appreciated the material on record with regard to grant of relief of specific performance. Accordingly, sought for interference of this court.
the sisters of defendant Nos.2 and 3 had entered into a contract to alienate the suit schedule property as well as another land bearing Sy No.53/3 measuring to an extent of 04 acres, 10 guntas for sum of Rs.34,12,500/-. Accordingly, he submitted that, the said fact was known to the plaintiff, however, the plaintiff has suppressed material facts before the Trial Court and as such, the judgment and
NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
decree in OS No.13 of 2011 is required to be confirmed. Insofar as RSA Crob No.7 of 2023 is concerned, it is submitted by learned counsel, Sri.V.B.Siddaramaiah that, as the plaintiff himself has failed to prove the execution of the Agreement of Sale dated 20.11.2009 and therefore, the First Appellate Court has committed an error in directing the defendants to repay the amount and accordingly, sought for setting aside the judgment and decree passed in RA No.67 of 2015.
NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
plaintiff that the defendants have executed Agreement of Sale dated 20.11.2009, agreeing to sell the suit schedule property for total consideration of Rs.10,75,000/- and in this regard, plaintiff has paid Rs.10 lakhs as advance amount. In order to prove Ex.P1-Original Sale Deed, the plaintiff has examined PW2-Maheshwara, witness to Ex.P1. Admittedly Ex.P1 is a unregistered Agreement of Sale and the plaintiff, has also filed a suit seeking damages of Rs.10 lakhs with interest. Perusal of the finding recorded by the Trial Court would indicate that, the plaintiff has issued legal notice (Ex.P2) calling upon the defendants to execute the registered Sale Deed for which the defendants gave reply as per Ex.P7-Reply Notice. Having taken note of the factual aspects on record that the defendants has averred that they intended to open the medical shop and accordingly, executed the pronote as well as affixed their signature on blank sheets, which makes it clear that, the defendants never intended to sell the suit schedule property in favour of the plaintiff. It is also forthcoming from the evidence of PW2 that, an agreement was made
NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
in respect of the suit property and another land property between the brother of the plaintiff, PW2-Maheshwar and defendants and sisters of defendants 2 and 3 and the said aspect was not disclosed in the plaint by the plaintiff. However, PW2 has deposed that he has no knowledge about the same. Taking into consideration the finding recorded by the Trial Court at paragraph 36, of the impugned judgment and decree in OS No.13 of 2011, the suit filed by the plaintiff itself is not maintainable as the evidence on record produced by the plaintiff does not substantiate the fact that the defendants have agreed to sell the suit schedule property as per the Agreement of Sale dated 20.11.2009. In that view of the matter, judgment and decree passed by the Trial Court is just and proper. However, the First Appellate Court, after the considering the fact that, the plaintiff has shown in his Income Tax Returns about the payment of Rs.6,60,000/towards advance amount to purchase the land at Harihara, but the said aspect cannot be accepted for simple reason that the case of the plaintiff before the Trial Court is that,
NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
he has paid Rs.10 lakhs towards advance amount. In that view of the matter, the First Appellate Court though rightly dismissed the claim made by the plaintiff regarding the grant of relief of specific performance, however, ought not to have directed the defendants to pay Rs.10 lakhs with
interest to the plaintiff as there is no material to substantiate the payment in furtherance of the execution of sale agreement. Be that as it may, as the plaintiff has failed to prove the Agreement of Sale at Ex.P1, and further, the amount of Rs.6,60,000/- as shown in the Income Tax Returns filed by the plaintiff towards the purchase of the suit schedule property in the present suit and the same has not been proved before the courts below
through oral or documentary evidence, the finding recorded by the First Appellate Court is erroneous on facts and law. The plaint averments envisages that the plaintiff has paid Rs.10 lakhs as advance amount as against total consideration of Rs.10,75,000/- and said aspect would demonstrate that the finding recorded by the First Appellate Court to that extent requires interference
Accordingly, the observation made by the First Appellate Court directing the defendants to pay Rs.10 lakhs with interest at the rate of 12% within three months from the date of judgment is incorrect. In the result, I pass the following:
ORDER
is dismissed ;
ii) RSA Crob.No.7 of 2023 is allowed and
accordingly, judgment and decree passed in OS No.13 of 2015 dated 20.03.2015 on the file of Senior Civil Judge, Harihar, is hereby confirmed.
iii) Judgment and decree dated 09.09.2020 passed by the Principal District and Sessions Judge, Davanagere in RA No.67 of 2015 insofar as directing the defendants to pay Rs.10 lakhs with interest at the rate of 12%
NC: 2024:KHC:36984 RSA No. 1581 of 2021 C/W RSA.CROB No. 7 of 2023
within three months from the date of
judgment is concerned, is hereby set aside.
SD/(E.S.INDIRESH) JUDGE
SB List No.: 1 Sl No.: 41
2 issues framed by the court
Whether the plaintiff proved the unregistered Agreement of Sale dated 20.11.2009 so as to claim specific performance?
Whether the First Appellate Court's direction to defendants to refund Rs.10 lakhs with interest was sustainable?
3 provisions across 1 enactments
D.S. Manjunatha
D.K. Padmavathi
D.K. Shankar
D.K. Santosh Kumar
E.S.Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
