Dismissed

B v. Srinivas v Sri Ujinappa

Karnataka HC10 Sept 2024RSA/270/2021

Case brief

AI extract

What is this about?

The Court rejected the Regular Second Appeal at the admission stage, holding that the appellant failed to demonstrate continuous readiness and willingness to perform the agreement of sale. Relying on Supreme Court precedents, the Court affirmed that the lower courts' findings were correct and no substantial question of law was made out.

What did the court decide?

Regular Second Appeal dismissed at the admission stage.

B v Srinivas Vs Sri Ujinappa — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:36983 RSA No. 270 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 270 OF 2021 (SP)

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BETWEEN:

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B.V. SRINIVAS S/O LATE VENKATARAMAIAH, AGED ABOUT 53 YEARS, R/AT NO.1246, J P NAGAR, 2^ND STAGE BENGALURU - 560 078.

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…APPELLANT

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(BY SRI. GANGADHARAIAH A.N., ADVOCATE)

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AND:

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SRI. UJINAPPA S/O MUNINANJAPPA SINCE DECEASED REPRESENTED BY HIS LRS

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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GIRIJAMMA W/O LATE PUTTANNA AGED ABOUT 56 YEARS,

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RAJAMMA W/O LATE PUTTANNA AGED ABOUT 52 YEARS,

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MUNINANJAPPA S/O UJINAPPA AGED ABOUT 50 YEARS,

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NAGARAJA S/O UJINAPPA AGED ABOUT 38 YEARS,

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NC: 2024:KHC:36983 RSA No. 270 of 2021

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RESPONDENTS NO.1 TO 4 ARE R/AT ADUR VILLAGE, KASABA HOBLI, ANEKAL TALUK BENGALURU URBAN DISTRICT.

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A. FRANSIS S/O ANTHONAPPA AGED ABOUT 37 YEARS,

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A. BALARAJU S/O ANTHONAPPA AGED ABOUT 32 YEARS

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A. JOSEPH S/O ANTHONAPPA AGED ABOUT 29 YEARS,

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RESPONDENTS NO. 5 TO 7 ARE R/AT KALENA AGRAHARA M L A LAYOUT, BANNERUGHATTA MAIN ROAD, BENGALURU - 560 076.

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BOBEN GEORGE S/O GEORGE KARACHIRA AGED ABOUT 49 YEARS, R/AT VILLA NO. C-01 PRIDE CROSS WINDS BUKKASAGARA JIGANI HOBLI ANKEAL TALUK BENGALURU - 560 083.

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…RESPONDENTS

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(BY SRI. M.A.SEBASTIAN, ADVOCATE FOR R8; R1 TO R7 SERVED AND UNREPRESENTED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 14.10.2020 PASSED IN R.A.No.5045/2017 ON THE FILE OF THE III ADDITIONAL

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3 - NC: 2024:KHC:36983 RSA No. 270 of 2021

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DISTRICT AND SESSIONS JUDGE, ANEKAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.11.2016 PASSED IN OS.No.1554/2006 (OLD OS No.328/2005) ON THE FILE OF THE SENIOR CIVIL JUDGE, ANEKAL.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by the plaintiff challenging the Judgment and Decree dated 14.10.2020 in R.A.No.5045/2017 on the file of III Addl. Dist. and Session Judge, Bengaluru Rural District, Sitting at Anekal, dismissing the appeal and confirming the Judgment and Decree dated 11.11.2016 in O.S.No.1554/2006 (O.S.No.328/2005), partly decreeing the suit of the plaintiff.

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For the sake of convenience, parties are referred to as per their status before the Trial Court.

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It is the case of the plaintiff that defendants are the absolute owner of the suit schedule property and they agreed

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4 - NC: 2024:KHC:36983 RSA No. 270 of 2021

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to sell the suit schedule property in favour of plaintiff for sum of Rs.2,29,125/- as per the agreement of sale dated 24.03.2003 and the plaintiff has paid Rs.1,00,000/- as advance amount and agreed to pay the balance sale consideration within six months from the date of agreement. It is the case of the plaintiff that despite plaintiff requested the defendants to execute the registered Sale Deed, however, the defendants failed to perform their part of the contract and as such plaintiff has filed suit in O.S.No.328/2005 before the Trial Court seeking relief of specific performance of Agreement of Sale dated 24.03.2003, and the same was re-numbered as O.S.No.1554/2006.

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On service of summons, defendants 1 to 3 failed to appear and accordingly, they were placed ex-parte. Defendant Nos.4 to 6 appeared through their counsel and filed written statement denying the averments made in the plaint. It is the case of the defendants that the plaintiff has created Agreement of Sale to knock off the property and further stated that, the defendants 4 to 6 have purchased the suit schedule property from defendant Nos.1 to 3 as per the registered Sale Deed dated 29.06.2005, and therefore, defendants sought for dismissal of the suit.

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5 - NC: 2024:KHC:36983 RSA No. 270 of 2021

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The Trial Court based on the pleadings formulated issues for its consideration. In order to establish their case, plaintiff has examined himself as P.W.1 and got marked ten documents as Exs.P1 to P10. Defendant No.4 was examined as D.W.1 and produced twenty-two documents which were marked as Exs.D1 to D22. The Trial Court, after considering the material on record, by its Judgment and Decree dated 11.11.2016, dismissed the suit of the plaintiff in respect of the specific performance of the contract, however directed the defendant Nos.1 to 3 to refund the earnest money with interest. Feeling aggrieved by the same, the plaintiff has preferred appeal in R.A.No.5045/2017 and same was resisted by defendants. The First Appellate Court after re-appreciating the material on record dismissed the appeal, consequently, confirmed the Judgment and Decree in O.S. No.1554/2006. Feeling aggrieved by the same, plaintiff has preferred this appeal.

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I have heard Sri. A.N. Gangadharaiah, learned counsel for the appellant. It is the contention of the appellant that both the Courts below have not considered the material on record in the right perspective and further the finding recorded by the courts below, that plaintiff was not ready and willing to perform

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NC: 2024:KHC:36983 RSA No. 270 of 2021

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his part of contract within six months from the date of the contract, is without any basis and accordingly, sought for interference of this court.

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In the light of the submissions made by the learned counsel appearing for the appellant, it is not in dispute that defendants 1 to 3 are owner of the schedule property and they have agreed to sell the suit schedule property in favour of plaintiff for a sum of Rs.2,29,125/- as per the agreement of sale dated 24.03.2003. It is stated in the agreement that the plaintiff has to perform his part of contract within six months from the date of Agreement of Sale. In the backdrop of the said aspect, it is the case of the plaintiff that he was always ready and willing to execute the registered Sale Deed. However, perusal of the finding recorded by both the courts below reveals that, no steps have been taken by the plaintiff calling upon the defendant to execute the registered Sale Deed within six months from the execution of the contract. It is also forthcoming from the records of the Courts below that plaintiff has not taken steps to issue notice to the defendant Nos.1 to 3 calling upon them to execute the registered Sale Deed.

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NC: 2024:KHC:36983 RSA No. 270 of 2021

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On the other hand, defendants have issued legal notice dated 24.06.2004 (Ex.P2) calling upon the plaintiff to register the sale deed and at that juncture, plaintiff has issued reply seeking relevant documents with regard to the subject land in question. It is to be noted that the said notice dated 24.06.2004 is issued after the expiry of one year and therefore, the plaintiff has not shown any cogent evidence to satisfy that he was always ready and willing to perform his part of the contract. At this juncture, it is relevant to follow the declaration of law made by the Hon'ble Supreme Court in the case of

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VIJAY KUMAR AND OTHERS VS. OM PARKASH reported in AIR 2018 SC 5098, wherein it is held that the plaintiff has to prove his readiness and willingness to perform his part of contract and same has to be shown throughout the existence of the agreement. It is also relevant to cite the Judgment of the Hon'ble Supreme Court in the case of SHENBAGAM AND OTHERS Vs. K.K. RATHINAVEL reported in AIR 2022 SC 1275,

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and following the declaration of above mentioned judgments, the finding recorded by both the Courts below is just and proper and does not call for interference in this appeal.

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NC: 2024:KHC:36983 RSA No. 270 of 2021

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In that view of the matter, as the appellant has not made out a case for framing substantial question of law as required under Section 100 of CPC, this Regular Second Appeal is rejected at the admission stage itself.

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Consequently, I.A.1/2021 does not survive for

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consideration.

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Sd/(E.S.INDIRESH) JUDGE

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sac List No.: 1 Sl No.: 40

B v. Srinivas v Sri Ujinappa

Case brief

What is this about?

What did the court decide?

B v. Srinivas v Sri Ujinappa

Case brief

What is this about?

What did the court decide?

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