Dismissed

Sri S v. Govindaraju S/O Late Venkataraju v Sri Huchappa S/O Late Kollisiddappa

Karnataka HC6 Jun 2024RSA/441/2013

Case brief

AI extract

What is this about?

This regular second appeal challenges a third-order decree dismissing an attempt at specific performance. The High Court held the appeal dismissed as the appellant failed to prove the second purchaser's knowledge of the earlier agreement and lacked diligence, upholding the lower courts' findings as factual.

What did the court decide?

Appeal dismissed; relief of refund of earnest money with interest upheld.

Sri S v Govindaraju S/O Late Venkataraju Vs Sri… — Specific Performance | Karnataka HC (2024)

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NC: 2024:KHC:19939 RSA No. 441 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 441 OF 2013 (SP)

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BETWEEN:

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SRI. S.V. GOVINDARAJU, S/O LATE VENKATARAJU, AGE: 64 YEARS, R/AT FORT, KANAKAPURA TOWN, RAMANAGARA DISTRICT - 571 511.

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…APPELLANT

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(BY SRI. K.P. BHUVAN, ADVOCATE)

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AND:

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SRI. HUCHAPPA, S/O LATE KOLLISIDDAPPA, AGED ABOUT 63 YEARS, R/AT KALLAHALLI VILLAGE, KASABA HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT - 571 511.

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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SMT. USHA PRASAD, SINCE DEAD BY HER LR'S,

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2(A). SMT. PREETHI, D/O USHA PRASAD, AGED ABOUT 35 YEARS, R/AT D.NO. 431, "PREETHI" 1^ST CROSS 3RD BLOCK, JAYANAGAR EAST, BANGALORE - 560 011.

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…RESPONDENTS

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(BY SRI. G. SRIDHAR, ADVOCATE FOR R2(A); R1 - SERVED AND UNREPRESENTED)

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2 - NC: 2024:KHC:19939 RSA No. 441 of 2013

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 16.10.2012 PASSED IN R.A.NO.93/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KANAKAPURA, RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.10.2010 PASSED IN OS.NO.49/1999 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, RAMANAGARA.

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

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JUDGMENT

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The appellant is before this Court seeking for the

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following reliefs:

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(a) Call for the records in O.S.No.49/1999 on the file of the Additional Senior Civil Judge, Ramanagara and also that of the records in R.A.No.93/2010 on the file of the Fast Track Court, Kanakapura.

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(b) Set-aside the portion of the Judgment and Decree dt: 16.10.2012 in R.A.No.93/2010 passed by the Learned Presiding Officer, Fast Track Court, Kanakapura and also that of the Judgment and Decree dt: 23.10.2010 in O.S.No.49/1999 passed by the Learned Additional Senior Civil Judge, Ramanagara.

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(c) Pass a Judgment and Decree, directing the respondent No.1 to execute the registered Sale Deed in respect of the suit schedule property in favour of the appellant and also declare that the registered Sale Deed dt: 30.09.1996 executed by respondent No.1 in favour of respondent No.2 is not binding upon the appellant.

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The appellant was a plaintiff in O.S.No.49/1999 in a suit

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filed for specific performance, which came to be partly allowed on 23.10.2010 dismissing the claim for specific

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NC: 2024:KHC:19939 RSA No. 441 of 2013

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performance of the appellant and granted refund of the earnest money along with 18% interest.

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On an appeal being filed by the plaintiff, the First Appellate Court, vide its judgment dated 16.10.2012 in R.A.No.93/2010 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. It is challenging the same that the appellant is before this Court.

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The contention of Sri K.P.Bhuvan, learned counsel for the appellant/plaintiff, is that the appellant had entered into an agreement of sale with defendant No.1 on 07.03.1996 for sale of the suit schedule property. Despite repeated follow up by the appellant for execution of a sale deed, more particularly by way of legal notice dated 31.07.1996 and 27.12.1996, defendant No.1 did not execute a sale deed, nor did he reply to the notice. The fact that the appellant had issued such notices establishes the readiness and willingness on part of the appellant. This aspect has not been taken into consideration.

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NC: 2024:KHC:19939 RSA No. 441 of 2013

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However, the Trial Court considering that respondent No.1 has sold the property, which was the subject matter of the agreement of sale deed dated 07.03.1996 on 30.09.1996, came to the conclusion that the appellant has not established any knowledge on part of the purchaser, respondent No.2 of the agreement dated 07.03.1996 has denied the relief of specific performance, which it ought not to have done. His submission is that the appellant having entered into an agreement to sell on 07.03.1996, the sale consideration having been agreed upon being for Rs.15,100/-, an advance amount of RS.5,000/- was paid, which indicates the bonafides on the part of the appellant and this aspect ought to have been taken into consideration by the Trial Court and also the First Appellate Court for grant of relief of specific performance.

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The last submission of Sri. K.P.Bhuvan, learned counsel for the plaintiff, is that defendant No.1 did not lead evidence by herself, but evidence was submitted through her power of attorney, who did not have any knowledge

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NC: 2024:KHC:19939 RSA No. 441 of 2013

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of the transaction and as such, the evidence led by defendant No.1 through her power of attorney could not be accepted by the Court.

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Sri. G.Shridhar, learned counsel for the legal representatives of defendant No.2 who is respondent No.2(a) in the present appeal, submits that respondent No.2 at the time when she purchased the property on 30.09.1996, was not aware of any agreement entered into between plaintiff and defendant No.1. Defendant No.2 is a bonafide purchaser for a value, having made payment of the market value of the property, and was put in possession thereof on the 30.09.1996 and has continued in possession thereafter. As such, defendant No.2 being a bona fide purchaser, the Trial Court, as also the First Appellate Court has rightly rejected the claim of the appellant. Any claim that the plaintiff may have is against the vendor, defendant No.1 and not against defendant No.2.

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Heard learned counsel for the appellant, respondents and perused papers.

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NC: 2024:KHC:19939 RSA No. 441 of 2013

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Having gone through the judgments of the Trial Court, the First Appellate Court as also having heard both the counsels, the finding of both the Courts is on an issue of fact and not on issue of law. Inasmuch as it was for the plaintiff to have established by cogent evidence that the subsequent purchaser of the property during the subsistence of an earlier agreement was knowledgeable about the said agreement and despite being so knowledgeable, has purchased the property. No evidence has been placed on record by the plaintiff to establish this fact.

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The contention of Sri K.P.Bhuvan, learned counsel for the appellant that the power of attorney holder was not aware of the transaction would be immaterial inasmuch as it was for the plaintiff to have established that defendant No.2 was knowledgeable about the earlier transaction between the plaintiff and defendant No.1 on 07.03.1996, defendant No.2 was only required to establish bonafide purchase by making payment of valuable consideration, being the market value which has been so established. As such, the evidence led by the

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NC: 2024:KHC:19939 RSA No. 441 of 2013

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power of attorney holder cannot be discarded solely for the reason that he was not aware of the transaction between the plaintiff and defendant No.1, which the obvious contention taken is that defendant No.2 was not aware of.

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The plaintiff not having established the above fact of knowledge on part of defendant No.2 of the agreement of sale entered into with the plaintiff prior to the purchase, whether the power of attorney holder of defendant No.2 has knowledge of the agreement of sale or not is immaterial, so as to upset the title of defendant No.2 in the property.

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Furthermore, the agreement of sale is dated 07.03.1996 notice is claimed to have been issued on 31.07.1996 and 27.12.1996. The sale in favour of respondent No.2 has occurred on the 30.09.1996. The plaintiff has not been diligent in prosecuting the matter, despite legal notice having been issued on 27.12.1996, the suit was filed on the last day on which the limitation would expire, that is, 06.03.1999 and as such, I am of the considered opinion

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NC: 2024:KHC:19939 RSA No. 441 of 2013

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that even on this ground the appellant/plaintiff is not entitled for any directory relief of specific performance, the relief of refund of the earnest money, along with interest, is in the interest of justice, which need not be disturbed. As such, the appeal stand dismissed.

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Sd/JUDGE

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GJM List No.: 1 Sl No.: 21 CT: BHK

Sri S v. Govindaraju S/O Late Venkataraju v Sri Huchappa S/O Late Kollisiddappa

Case brief

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Sri S v. Govindaraju S/O Late Venkataraju v Sri Huchappa S/O Late Kollisiddappa

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