Dismissed

Smt. Vijayalakshmi v. Sri. Devaraju

Karnataka HC3 Sept 2024RSA/375/2022

Case brief

AI extract

What is this about?

The court dismissed this second appeal challenging a decree for specific performance of a sale agreement. The appellant claimed the document was a loan agreement, but the court held it was a valid sale agreement where the defendant failed to perform.

What did the court decide?

Second Appeal dismissed; First Appellate Court decree for specific performance confirmed.

Smt. Vijayalakshmi Vs Sri. Devaraju — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD 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. 375 OF 2022 (SP)

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BETWEEN:

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SMT. VIJAYALAKSHMI W/O RANGASWAMY @ PRAKASH AGED ABOUT 49 YEARS R/AT NAGAIAHNAKOPPLU VILLAGE SHRAVANBELAGOLA HOBLI CHANARAYAPATNA TALUK HASSAN DISTRICT - 573135.

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…APPELLANT

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(BY SRI. NARASIMHA PRASAD S.D., ADVOCATE)

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AND:

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

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SRI. DEVARAJU S/O PUTTEGOWDA AGED ABOUT 56 YERS R/AT NAGAIAHNAKOPPALU VILLAGE SHRAVANABELAGOLA HOBLI CHANNARAYAPATNA TALUK HASSAN - 573135.

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…RESPONDENT

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(BY SRI. ABHILASH VAIDYANATHAN.,ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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JUDGMENT AND DECREE DATED 28.07.2021 PASSED IN R.A.No.71 OF 2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.06.2018 PASSED IN O.S. No.317 OF 2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNARAYAPATNA.

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THIS APPEAL, COMING ON FOR HEARING, 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 defendant / appellant in R.A.No.71/2018, challenging the Judgment and Decree dated 28.07.2021 on the file of Civil Judge (Sr.Dn.), Channarayapatna, Hassan, confirming the Judgment and Decree dated 29.06.2018 in O.S.No.317/2010 on the file of Principal Civil Judge and JMFC, Channarayapatna, decreeing the suit of the plaintiff.

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

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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It is the case of the plaintiff that the defendant is owner of suit schedule property and has agreed to sell the suit schedule property in favour of plaintiff as per the agreement of sale dated 20.01.2010 for total consideration of Rs.1,31,000/and it is further pleaded that, pursuant to the execution of the agreement of sale dated 20.01.2010, defendant received the advance amount of Rs.31,000/- and agreed to receive the balance consideration amount of Rs.1,00,000/- at the time of registration of the sale deed subject to defendant agreeing to prepare the sketch in respect of the suit schedule property within six months. Thereafter the plaintiff approached defendant and called upon the defendant to execute the registered sale deed, however, the defendant has not executed registered sale deed and the plaintiff was always ready and willing to perform his part of contract and on the other hand, as the defendant was not ready to perform her part of contract, the plaintiff has issued the legal notice to defendant calling upon defendant to execute the registered Sale Deed and as there is no reply made by the defendant, the plaintiff has filed O.S.No.317/2010 before the Trial Court, seeking relief of

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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specific performance of contract of sale in respect of the suit schedule property.

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After service of summons, the defendant entered appearance and filed detailed written statement contending that the defendant had acquired the suit schedule property as per deed of sale dated 28.11.2007 and the defendant has acquired suit item No.3 through the release deed dated 26.07.2008 executed by the plaintiff. It is also contended by the defendant that one Srinivas had filed suit against the plaintiff in O.S.No.233/2007 alleging encroachment of 3¹ /2 guntas in Sy.No.101/5 and seeking delivery of possession of land in Sy.No.101/5. It is further averred in the written statement that the defendant and her husband got issued the legal notice dated 29.04.2010 alleging that this defendant executed agreement of sale dated 20.01.2010, accordingly, the case of the defendant is that when the O.S.No.233/2007 was pending, sought for dismissal of the present suit.

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The Trial Court based on the pleadings on record, has formulated issues for its consideration. In order to establish their case, plaintiff has himself got examined as P.W.1 and

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5 - NC: 2024:KHC:35970 RSA No. 375 of 2022

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three more witnesses as P.W.2, P.W.3 and P.W.4, and produced seven documents and same were marked as Exs.P1 to P7. Defendant herself got examined as D.W.1 and examined

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one more witness as D.W.2, and produced seven documents which were marked as Exs.D1 to D7. The Trial Court, after considering the material on record, by its Judgment and Decree dated 29.06.2018, decreed the suit and directed the defendant to execute registered Sale Deed in respect of the suit schedule property, in favour of the plaintiff by receiving the balance sale consideration amount. Feeling aggrieved by the same, the defendant has filed R.A.No.17/2018 and same was resisted by the plaintiff. The First Appellate Court, after re-appreciating the material on record, by its Judgment and Decree dated 28.07.2021, dismissed the appeal, consequently confirmed the Judgment and Decree in O.S.No.317/2010. Feeling aggrieved by the same, the defendant has preferred this Second Appeal.

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This Court, vide order dated 04.04.2022, formulated the following substantial questions of law:

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"Whether the Courts committed an error in not reading the evidence of P.W.1, which clearly

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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indicated that the plaintiff had advanced loan of a sum of Rs.1,31,000/- out of which Rs.31,000/- was paid by cash and the remaining sum of Rs.1,00,000/was payable on the date of registration of the deed of absolute sale?

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Whether the exercise of jurisdiction by the Trial Court and First Appellate Court is justified?"

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I have heard Sri. Narasimha Prasad S.D., learned counsel appearing for the appellant and Sri. Abhilash Vaidyanathan, learned counsel appearing for the respondent.

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Sri. Narasimha Prasad S.D., learned counsel for the appellant/defendant contends that both the Courts below have failed to consider the fact that the defendant has received loan from the plaintiff and on the pretext of loan agreement, the plaintiff has fraudulently got the sale agreement produced at Ex.P7 and therefore, it is contended by the learned counsel for the appellant that the finding recorded by both the Courts below requires to be interfered with in this appeal. It is also contended by the learned counsel for the appellant/defendant

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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that the plaintiff has failed to prove readiness and willingness on his part to purchase the suit schedule property by producing the relevant bank statement to enable him to pay the balance sale consideration amount and accordingly, sought for interference in this appeal.

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Per contra, Sri. Abhilash Vaidyanathan, learned counsel appearing for the respondent/plaintiff submitted that the defendant had purchased the suit schedule property for valuable consideration of Rs.46,000/- as per the registered Sale Deed dated 28.11.2007 and also acquired suit item No.3 as per the release Deed dated 26.07.2008 from the plaintiff and the plaintiff has expressed his willingness by issuing legal notice to the defendant as per Ex.P5 and same was served on the defendant as the defendant has not come forward to execute the registered Sale Deed and accordingly, sought to justify the impugned decree passed by the Courts below.

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In the light of the submissions made by the learned counsel appearing for the parties, it is not in dispute that the defendant is owner of the suit schedule property. It is the case of the plaintiff that the defendant offered to sell suit schedule

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8 - NC: 2024:KHC:35970 RSA No. 375 of 2022

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property for total sale consideration amount of Rs.1,31,000/as per the agreement of sale dated 20.01.2020. In order to establish the execution of the agreement of sale, the plaintiff has examined P.W.2 and P.W.3 as witnesses to the said document. The scribe to the said agreement of sale - D. Nagraj was examined as P.W.4 to establish the execution of agreement of sale.

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Having taken note of the evidence on record adduced by P.W.1 to P.W.4, it is not in dispute that defendant has agreed to sell the suit schedule property in favour of plaintiff for a sum of Rs.1,31,000/-, in terms of the agreement of sale produced at Ex.P7. Though the learned counsel for the appellant/defendant argued that the plaintiff has not shown his willingness to purchase the property by producing the bank statement, however the perusal of the averments made in the legal notice produced at Ex.P5 makes it clear that plaintiff was ready to get the registered Sale Deed in his favour and as such, asked the defendant to receive the balance sale consideration and execute the sale deed.

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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In that view of the matter, as the plaintiff has expressed his willingness by way of issuing a legal notice, which was served on the defendant, however, the defendant has erred in not issuing reply to the said notice. In that view of the matter, the defence raised by the defendant cannot be accepted. Taking into consideration the finding recorded by both the Courts below that the suit is filed within eight months from the date of execution of the agreement of sale dated 20.01.2010, I am of the view that, the finding recorded by the Trial Court is just and proper whi ch does not call for interference in this appeal.

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In the backdrop of these circumstances, I have carefully examined the finding recorded by the First Appellate Court. The First Appellate Court, after re-appreciating the material on record, particularly the sale agreement produced at Ex.P7, has rightly come to the conclusion that the defendant has agreed to sell the suit schedule property in favour of the plaintiff and the said document cannot be considered as loan agreement. In that view of the matter, as both the Courts below have concurrently held against the defendant and directed the defendant to execute the registered Sale Deed in terms of the agreement of

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NC: 2024:KHC:35970 RSA No. 375 of 2022

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sale dated 20.01.2010 (Ex.P7), the substantial question of law framed above favours the plaintiff and accordingly, the appeal is dismissed on merits as the defendant / appellant has not made out a case for interference with the finding of fact recorded by both the Courts below.

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SD/(E.S.INDIRESH) JUDGE

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sac List No.: 1 Sl No.: 62

Smt. Vijayalakshmi v. Sri. Devaraju

Case brief

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Smt. Vijayalakshmi v. Sri. Devaraju

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