Second appeal against concurrent decrees for specific performance of a 2000 sale agreement. Defendants claimed it was a loan security; D.W.1's admissions and clause No.10 showed it was a sale agreement, and the refund clause did not disentitle specific performance. Appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.170 OF 2023 (SP)
BETWEEN:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
ALL ARE R/AT KODAGU VILLAGE, AREHALLI HOBLI, NAGENAHALLI POST, BELUR TALUK HASSAN DISTRICT-573115.
…APPELLANTS
(BY SRI NANDISH GOWDA G.B., ADVOCATE)
AND:
…RESPONDENT
(BY SRI B.A.RAMAKRISHNA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.11.2022 PASSED IN R.A.NO.3/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BELUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.12.2020 PASSED IN O.S.NO.157/2012 ON THE FILE OF THE CIVIL JUDGE AND JMFC, BELUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for the respondent.
not come forward to execute the sale deed and hence the plaintiff caused the issuance of legal notice and the defendants replied to the same and hence without any other alternative, the plaintiff filed a suit for specific performance.
the agreement and his signature was obtained to the agreement inspite of the known fact that he was then a minor. It is contended that the suit schedule property was the only ancestral building at Belur and convenient for their stay therein for the management/looking after their landed properties nearby Cheekanahally Village, Belur Taluk and there was no any intention of alienating the suit schedule property by the defendants and also contended that in terms of the clause, the amount is repayable with interest. It is also contended that Sri C.V. Lokesh, husband of defendant No.1 and father of defendant No.2 and 3 before his death had repaid the loan amount to the plaintiff and demanded for the return of the agreement dated 03.04.2000 executed in his favour. But the plaintiff went on dodging the matter and in the meanwhile, Sri C.V. Lokesh passed away and the said document remained with the plaintiff and later the plaintiff concealing all the above said facts and misusing the said document, got issued a legal notice and later filed the above said suit. The said document is not arising out of free and conscious mind of the defendants and the same cannot be enforceable.
amount for renovation and the same has not been accepted and in detail discussed considering the material on record while answering issue No.3 in coming to the conclusion that Ex.P.1 is proved by the plaintiff and granted the relief of specific performance.
NC: 2024:KHC:25019 RSA No. 170 of 2023
obligations, then the plaintiff has got alternative remedy to seek refund of amount with interest and confirmed the judgment of the Trial Court.
document and admission on the part of D.W.1 has been extracted in paragraph No.17 of the judgment of the Trial Court and reasoning also given and with regard to clause No.10 of the agreement, discussed in detail while answering issue No.2 and not committed any error.
the said contention. The fact that husband of defendant No.1 subsequently passed away is not in dispute. The answers elicited from the mouth of D.W.1 is clear that it was a sale agreement and not a document of loan transaction. Even specific answers are elicited with regard to earlier partition between the parties and she has given the admission that herself and her husband and two children have executed the sale agreement and she has also read the sale agreement and she is having copy of the sale agreement in her custody. She also admitted that when they executed the sale agreement, the property was standing in the name of one Puttaiah. In the sale agreement, there is a reference to selling of the suit schedule property and when a suggestion was made that in order to construct the house, the property was sold and they have received the money, she categorically admits that the same is mentioned in the agreement also. She also categorically admits that in the sale agreement, sale consideration is fixed as Rs.2,55,000/-. When such admission is unequivocal, the very contention of the learned counsel for the appellants that it is only a loan transaction and document is executed as security document, cannot be accepted.
No.10 of the agreement Ex.P.1. Clause No.10 will not disentitle the plaintiff to get the relief of specific performance. That is one of the remedy alternatively given to the plaintiff. Hence, the very contention of the learned counsel for the appellants that both the Courts have not exercised the discretion under Section 20 of the Specific Relief Act cannot be accepted. I do not find any ground to invoke Section 100 of CPC to admit the appeal and frame substantial question of law.
following:
ORDER
The second appeal is dismissed.
Sd/JUDGE
MD
List No.: 1 Sl No.: 81
2 issues framed by the court
Whether the agreement dated 03.04.2000 was a sale agreement or a loan-security document.
Whether clause No.10 (refund with interest) barred a decree for specific performance.
2 provisions across 2 enactments
Smt. Manjula
Sri Karthik
Sri Vyshak
Sri K.G. Pramod Kumar
H.P.SANDESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
