Dismissed

Mr Ayaz Pasha v. Mr S N Shankar

Karnataka HC18 Jun 2024RSA/192/2023

Case brief

AI extract

What is this about?

Suit for specific performance based on a registered agreement of sale; defendant claimed it was a loan security already repaid. Trial Court and First Appellate Court concurrently found the agreement proved and plaintiff ready and willing, dismissing the defence. The High Court found no substantial question of law and dismissed the second appeal.

What the court decided

AI extract

Mr Ayaz Pasha Vs Mr S N Shankar — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 192 OF 2023 (SP)

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BETWEEN:

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MR. AYAZ PASHA SON OF SAHEB JAN AGED ABOUT 47 YEARS RESIDING AT PENSION MOHALLA HASSAN.

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…APPELLANT

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(BY SRI DEVAIAH I.M., ADVOCATE)

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AND:

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MR. S.N. SHANKAR SON OF S T NAGARAJA RAO AGED ABOUT 66 YEARS

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RESIDING AT HOUSE NO.2552,

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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ARALEPETE ROAD, HASSAN TOWN HASSAN-573201.

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…RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.10.2022 PASSED IN R.A.NO.165/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, AND JMFC, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.09.2019 PASSED IN O.S.NO.592/2016 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HASSAN.

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

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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JUDGMENT

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This matter is listed for admission and I have heard the learned counsel for the appellant.

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The factual matrix of the case of the plaintiff before the Trial Court is that the defendant is the owner of the property and he entered into an agreement of sale on 28.11.2014 for Rs.1,00,000/- and received earnest amount of Rs.75,000/- and the balance consideration was agreed to be paid at the time of execution of the sale deed. The plaintiff demanded and requested the defendant to execute the sale deed by receiving the balance amount. But the defendant went on postponing the same. The plaintiff was always ready and willing to perform his part of contract. But, the defendant did not come forward to execute the sale deed. Hence, he had filed the suit.

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The defendant appeared and filed the written statement contending that he has not received Rs.75,000/- as stated by the plaintiff and there was no necessity for the defendant to sell the suit property. In the year 2014, the market value of the suit property was Rs.50,000/- per gunta.

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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The market value of suit property is more than Rs.6,00,000/-. It is contended that alleged agreement is concocted and created by the plaintiff by cheating the defendant. It is further contended that the wife of defendant has purchased the property in Sy.No.229 of Shankha Village and as there was shortage of funds, the defendant sought for financial help from the plaintiff. At that time, the plaintiff gave Rs.1,15,000/- and the defendant offered security of Sy.No.17/2 measuring 18 guntas and Sy.No.16/2 measuring 12 guntas towards the said loan transaction. It is also his contention, he has repaid the amount of Rs.1,15,000/- with interest of Rs.10,000/-. The plaintiff has tendered a receipt for having received the said amount in the presence of witnesses. It is contended that the plaintiff had promised that the registered collateral security would be cancelled in due course. But, he had postponed the same and plaintiff had created the alleged documents for his benefit by concealing the true facts. The plaintiff has executed an agreement in favour of defendant agreeing to sell his property bearing khatha No.230 for Rs.7,70,000/- and has received Rs.5,00,000/-. When the defendant learnt that the plaintiff is making plan to sell the said property in favour of

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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others, he filed O.S.No.112/2016 and immediately after filing of the said suit, the plaintiff has come up with this suit by concocting and creating the documents.

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The Trial Court having considered the pleadings of the parties allowed the parties to lead evidence and the plaintiff was examined as P.W. and also examined one witness as P.W.2 and got marked the documents as Exs.P1 to P5. The defendant was examined as D.W.1 and got marked the documents as Ex.D1.

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The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the agreement executed on 28.11.2014 has been proved and amount of Rs.75,000/- has been paid in terms of recitals of the document of sale agreement dated 28.11.2014. The Trial Court also comes to the conclusion that the plaintiff was always ready and willing to perform his part of contract and answered issue Nos.1 to 4 as ‘affirmative’ in coming to the conclusion that the defence which has been taken by the defendant has not been proved either by examining any of the witnesses, who were present at the time

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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of loan transaction or by producing any documents for having repaid the amount of Rs.1,15,000/- as contended by him and decreed the suit and directed him to execute the sale deed.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.165/2019. The First Appellate Court also, on reappreciation of both oral and documentary evidence placed on record, formulated the point whether the Trial Court was justified in holding that alleged agreement of sale dated 28.11.2014 was not executed towards security of the loan amount as contended by the appellant/defendant, whether the appellant had proved that he has always been ready and willing to perform his part of contract, whether the Trial Court was justified in decreeing the suit of the plaintiff and whether the judgment and decree of the Trial Court call for interference. The First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record affirmed the judgment and decree of the Trial Court that sale agreement was executed and he did not prove the defence which has been taken before the Trial Court and dismissed the appeal. Hence, the presence second appeal is filed before this Court.

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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The main contention of the learned counsel for the appellant before this Court is that both the Courts have committed an error in not considering the defence which has been taken by the appellant/defendant and failed to take note of the document of Ex.D1 which came into existence on the very same day when he had purchased the property and at that time, he had availed the loan from the plaintiff and executed the document. Learned counsel also would vehemently contend that both the Courts have come to the conclusion that plaintiff was always ready and willing to perform his part of contract and not proved the factum of Section 16(c) of the Specific Relief Act and ignored the material on record. Hence, it requires interference of this Court to admit the appeal and frame substantial question of law.

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Having heard the learned counsel for the appellant and also the reasoning given by the Trial Court, it is the specific case of plaintiff before the Trial Court that the appellant had executed a sale agreement and sale agreement was also registered before the Sub-registrar and both the Courts come to the conclusion that there is an admission with regard to the execution of the sale agreement i.e., Ex.P1 and he went to the

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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office of the Sub-registrar. It is the contention of the defendant that he had received Rs.1,15,000/- and not Rs.25,000/towards sale consideration and in order to substantiate his contention that he had made payment of Rs.1,15,000/-, no document is produced before the Trial Court, except contending that he has repaid the amount. It is also his case that the very plaintiff also executed a sale agreement in his favour and he paid the amount of Rs.5,00,000/- and he also filed the suit for the relief of specific performance and the said suit was dismissed and an appeal is filed. The material on record has been considered by the Trial Court as well as the First Appellate Court. When the defendant has taken a specific defence that he had availed the loan and he repaid the loan, he did not examine any witnesses, who were present when amount was repaid. Apart from that, his contention is that it was only a loan transaction and not the sale agreement and even he did not examine any of the witness to show that it was a loan transaction and not a sale agreement and even according to him, if he had repaid the amount, he ought to have got it cancelled the sale agreement which was registered. When such material is available on record, the very defence which has

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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been taken by the defendant before the Trial Court has not been substantiated either by producing any document or by examining any witness and even the Trial Court also, while passing the judgment in detail discussed with regard to the same, particularly regarding the very execution of the document and also with regard to the repayment of the amount as contended by the defendant in Para No.11 of the judgment since he had contended that he had repaid the amount of Rs.1,15,000/- with interest at Rs.10,000/-.

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The First Appellate Court also taken note of the admission on the part of this appellant in Para No.16, wherein also he categorically admitted very execution of sale agreement and the very defence set out by the appellant has not been substantiated by producing any document and none of the witnesses were examined. The contention in the written statement is that the plaintiff had issued receipt for having repaid the amount and the said receipt is not produced before the Court. When such being the case and when there is a concurrent finding, the very contention that Section 16(c) of the Specific Relief Act has not been complied cannot be accepted. Hence, no grounds are made out to invoke Section

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NC: 2024:KHC:21568 RSA No. 192 of 2023

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100 of CPC to admit the appeal and frame any substantial question of law.

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Accordingly, the regular second appeal is dismissed.

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Sd/JUDGE

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ST List No.: 1 Sl No.: 65

Mr Ayaz Pasha v. Mr S N Shankar

Case brief

What is this about?

What the court decided

Mr Ayaz Pasha v. Mr S N Shankar

Case brief

What is this about?

What the court decided

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