Sri K K Karthikeyan Vs Smt Jayadharmarajan — Specific Performance | Karnataka HC (2025)

Sri K K Karthikeyan Vs Smt Jayadharmarajan — Specific Performance | Karnataka HC (2025)

What the court decided

AI extract

Outcome

HRRP No.266/2008 dismissed with costs (Tribunal's eviction order under S.27(2)(r) KR Act confirmed); RFA No.1530/2011 allowed with costs; judgment and decree dated 05.08.2011 in OS.No.6580/2006 set aside; suit of the plaintiff dismissed.

Issue for consideration

Whether the petitioners in HRRP No.266/2008 have made out any grounds to set aside the judgment and decree dated 24.07.2008 passed in HRC.No.473/2006 (point No.1, answered in the negative). +1 more

Court's answer

The Tribunal's order in HRC.No.473/2006 allowing eviction under S.27(2)(r) of the K.R. Act suffers from no illegality or perversity; it is confirmed by dismissing the rent revision petition, and point No.1 is answered in the negative.

Ratio / Principle

The landlord-petitioner runs her industry 'M/s Perfect Industries and Products' in rented premises at Sunkadakatte (her earlier Tavarekere premises having been sold); since she owns the schedule premises, she cannot be compelled to run her industry in a rented premises, so she is entitled to eviction of the tenant under the bona fide requirement ground (S.27(2)(a)(r) KR Act as applied by this Court).

Key takeaways

The plaintiff failed to prove readiness and willingness: during cross-examination PW1 categorically admitted he was not having sufficient cash; his claims that his father paid Rs.1,50,000 and his brother abroad paid Rs.1,00,000 were neither pleaded nor substantiated; keeping Rs.2,50,000 in cash at home in 2006 was unusual; and even after the decree he never deposited the balance to demonstrate bonafides.ratio¶143
Adopting the Apex Court's ruling in U.N. Krishnamurthy (2022 LiveLaw (SC) 588), this Court holds that proving readiness and willingness by adducing evidence, including availability of funds, is the plaintiff's bounden duty; a mere statement or averment in the plaint does not suffice; consequently the plaintiff is not entitled to specific performance.ratio¶149

Detailed headnote1 paragraphs

High Court of Karnataka (Hon'ble Mrs. Justice M.G. Uma, sole judge), common order dated 12.12.2025 (NC: 2025:KHC:52959) in HRRP No.266/2008 c/w RFA No.1530/2011: (i) HRRP dismissed with costs - the Tribunal's order dated 24.07.2008 in HRC.No.473/2006 allowing eviction under S.27(2)(r) Karnataka Rent Control Act (bona fide requirement: landlord running her industry 'M/s Perfect Industries and Products' in rented premises at Sunkadakatte while owning the schedule premises) was found free of illegality or perversity and confirmed; the arrears-of-rent claim under S.27(2)(a) had already failed for want of the requisite notice. (ii) RFA allowed with costs - the judgment and decree dated 05.08.2011 in O.S.No.6580/2006 decreeing specific performance of the agreement to sell (Ex.P1 dated 24.12.2004; consideration Rs.5,00,000; advance Rs.2,00,000 plus Rs.50,000; balance Rs.2,50,000 payable within six months) was set aside and the suit dismissed: the plaintiff failed to prove readiness and willingness (PW1 admitted in cross-examination he lacked sufficient cash; alleged contributions of Rs.1,50,000 by his father and Rs.1,00,000 by his brother abroad were neither pleaded nor proved; the balance was never deposited even after the decree); mere plaint averment of readiness is insufficient - proving readiness by evidence, including availability of funds, is the plaintiff's bounden duty (relying on U.N. Krishnamurthy, 2022 LiveLaw (SC) 588); steep escalation of Bengaluru property prices renders specific performance inequitable where the purchaser delays and the vendor is blameless, and the judicious discretion whether to grant the relief leans towards the owner-vendor. Basavaraj, 2023 LiveLaw (SC) 17, invoked on the passbook point, was not followed on the facts (plaintiff claimed to hold cash at home).

1 -

NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF DECEMBER, 2025

BEFORE

THE HON'BLE MRS. JUSTICE M G UMA HOUSE RENT REV. PETITION NO. 266 OF 2008

C/W

REGULAR FIRST APPEAL NO. 1530 OF 2011 (SP)

IN HRRP NO.266/2008

BETWEEN :

SRI K K KARTHIKEYAN AGED ABOUT 70 YRS S/O. KUNJIVELUM, R/AT. KALLUPALAM HOUSE INCHAMUDY POST, TRICHUR DISTRICT KERALA STATE

Digitally signed by PRASHANTH N V Location: High Court of Karnataka

SRI K K SANTHOSH KUMAR AGED ABOUT 46 YEARS S/O. KARTHIKEYAN R/O.NO.157, 1^ST CROSS 4^TH MAIN, INDUSTRIAL TOWN, BANGALORE - 560 044

… PETITIONERS

(PETN 1 & 2 - SD/-)

AND :

SMT JAYADHARMARAJAN AGED ABOUT 50 YEARS W/O SRI K V DHARMARAJAN R/AT.NO.484-A, 1^ST STAGE, WEST OF CHORD ROAD, 6^TH PHASE, BANGALORE-560044

… RESPONDENT

2 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

(BY SRI. UMESHA, ADVOCATE FOR SRI. B. JANARDHAN, ADVOCATE)

THIS HRRP IS FILED UNDER SECTION 46 OF KARNATAKA RENT CONTROL ACT AGAINST THE ORDER DATED: 24.07.2008 PASSED IN HRC.NO.473/2006 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, ALLOWING THE PETITION FILED U/S 27(2)(R) OF THE KR ACT AND DISMISSING THE PETITION FILED U/S 27(2)(A)(D)(I) AND (L) OF THE KR ACT FOR EVICTION.

IN RFA NO.1530/2011

BETWEEN :

SMT. JAYADHARMARAJAN W/O SRI. K.V. DHARAMARAJAN, AGED ABOUT 54 YEARS, RESIDING AT NO.484-A, 1^ST STAGE, WEST OF CHORD ROAD, BANGALORE-44. REPRESENT BY HER SPECIAL POWER OF ATTORNEY HOLDER SRI. K.V. DHARMARAJAN S/O SRI K R VELAYUDHAN AGED ABOUT 60 YEARS, RESIDING AT NO.484-A, 1^ST STAGE, WEST OF CHORD ROAD, BANGALORE - 560 044.

… PETITIONER

(BY SRI. UMESHA, ADVOCATE FOR

SRI. B. JANARDHANA, ADVOCATE)

AND :

SRI. K K SANTHOSH KUMAR S/O K K KAKARTHIKEYAN AGED ABOUT 47 YEARS RESIDING AT NO.157, 1^ST CROSS, 4^TH MAIN, INDUSTRIAL TOWN BANGALORE - 560 044

… RESPONDENT

(BY SRI. VASANTH V. FERNANDES, ADVCOATE)

3 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

THIS RFA IS FILED U/SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:5.8.2011 PASSED IN O.S.NO.6580/2006 ON THE FILE OF THE 17^TH ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH 16), DECREEING THE SUIT FOR SPECIFIC PERFORMANCE.

THESE HRRP AND RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.11.2025 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:

CORAM: HON'BLE MRS JUSTICE M G UMA

CAV COMMON ORDER

The revision petitioners being the respondents in HRC No.473/2006 on the file of the learned Chief Judge of Small Causes at Bengaluru (hereinafter referred to as 'the Tribunal' for short) have filed HRRP No.226/2008 seeking to set aside the judgment and order dated 24.07.2008, passed by the Trial Court allowing the petition directing the respondents to vacate and put the petitioner in vacant possession of the petition schedule premises within two months from the date of order.

The appellant being the defendant in OS.No.6580/2006 on the file of the learned 17^th Additional City Civil and Sessions Court, (CCH-16) Bengaluru (hereinafter referred to as 'the Trial Court') has preferred RFA No.1530/2011, impugning the judgment dated 05.08.2011

4 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

decreeing the suit for specific performance of contract directing

the defendant to vacate the schedule premises, execute the registered sale deed in favour of the plaintiff by receiving the balance consideration amount.

The schedule appended to plaint describes the property as the piece and parcel of the property bearing site No.157 and house list No.338/295 of Saneguruvanalli village, Yeshwanthapura Hobli, Bengaluru North Taluk, Bengaluru boundaries on the East by property No.156, West by road, North by house No.261 and South by road, measuring East to West 24 feet, North to South 39 feet, with one square A.C.sheet roofed house having electric facility.

For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

It is the contention of the plaintiff that the defendant is the owner of the suit schedule property and he entered into an agreement to sell dated 24.12.2004 agreeing to sell the property in favour of the plaintiff for a total consideration of Rs.5,00,000/-. An advance of Rs.2,00,000/was paid by the plaintiff at the time of entering into the agreement - Ex.P1 dated 24.12.2004 and the balance amount

5 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

of Rs.3,00,000/- was agreed to be paid within six months from the date of agreement. It is contended that the time was not the essence of contract. The plaintiff was ready and willing to perform his part of the contract by paying the balance consideration amount and get the sale deed registered. But the defendant had not cleared the tax payable on the schedule property. He has also not delivered the vacant possession of the schedule property as agreed. The plaintiff paid an additional advance amount of Rs.50,000/- to the plaintiff on 25.03.2005. Inspite of that, the defendant has not executed the registered sale deed.

It is contended that the defendant has issued letter

dated 25.05.2006 forfeiting the advance amount and also calling upon the plaintiff to vacate the premises by returning the documents. The plaintiff has issued a reply on 27.05.2006 informing the defendant that the plaintiff is ready and willing to perform his part of the contract and calling upon the defendant to furnish the original documents and to execute the sale deed. Defendant has issued a rejoinder as per Ex.P5 on 12.06.2006 insisting to vacate the premises and to pay the arrears of rent. The plaintiff has issued the reply as per Ex.P6 dated

6 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

21.07.2006 seeking execution of the sale deed. Since the defendant has not came forward to execute the sale deed, the plaintiff has filed the suit seeking specific performance of the contract.

The defendant has appeared before the Trial Court and filed the written statement denying the contentions taken by the plaintiff. The defendant has admitted the execution of the agreement to sell dated 24.12.2004. The defendant admitted that he is the owner of the schedule property and in his capacity as owner, executed the agreement to sell dated 24.12.2004 to sell the schedule property for total consideration of Rs.5,00,000/-. He also admits that the plaintiff had paid the advance amount of Rs.2,00,000/- and has agreed to pay the balance amount of Rs.3,00,000/-, to get the sale deed registered within six months from the date of the agreement. All other averments made in the plaint are denied. It is denied that the time was not the essence of contract.

The defendant admitted issuance of legal notice on 25.05.2006, as the plaintiff has failed to pay the balance consideration amount and to get the sale deed registered inspite of repeated reminders. It is also admitted that the

7 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

plaintiff has issued the reply as per Ex.P3. The defendant has issued the rejoinder as per Ex.P5 and again the plaintiff has issued reply as per Ex.P6. It is contended by the defendant that the plaintiff was never ready and willing to perform his part of the contract by paying the balance consideration amount. The plaintiff had approached the defendant and pleaded his inability to pay the balance consideration amount of Rs.2,50,000/-. It is also contended that the plaintiff had verified the documents of title of defendants before entering into agreement for sell. After long lapse of time, the plaintiff has contended that he is ready and willing to perform his part of contract taking into consideration, there is raise in the price of the immovable property in and around Bengaluru.

It is contended by the defendant that the plaintiff is in possession and enjoyment of the schedule property as tenant since 1981 and is carrying on his business therein. Pursuant to entering into the agreement for sell i.e., since 24.12.2004, the plaintiff never paid the rent as agreed. Therefore, the defendant has filed HRC No.473/2006 before the Small Cause Court, Bengaluru. Accordingly, the defendant prayed for dismissal of the suit.

8 -

NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

On the basis of these pleadings, following issues

came to be framed by the Trial Court:

1. Whether the plaintiff proves that he was ready and willing to perform his part of contract?

2. Whether the defendant proves the time was essence of contract?

3. Whether the plaintiff is entitled for the relief of specific performance of contract U.s.20 of the Specific Relief Act?

4. What order or decree?

Plaintiff examined himself as PW1 and got marked Exs.P1 to P9 in support of his contention. The defendant examined her husband as General Power of Attorney holder DW1 and got marked Exs.D1 to D4 in support of his defence. The Trial Court after taking into consideration all these materials on record, decreed the suit. Being aggrieved by the same, the defendant has preferred RFA No.1530/2011.

The defendant in OS.No.6580/2006 being the owner of

the schedule property filed HRC No.473/2006 against the plaintiff seeking eviction. Similar contentions were raised by both the parties in HRC. The plaintiff has examined himself as

9 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

PW1 and got marked Exs.P1 to P7 in support of his contention. Respondent examined his son as RW1 and got marked Ex.R1 to R43 in support of his defence. The Tribunal after taking into consideration all these materials on record, allowed HRC No.473/2006 and directed the respondent - tenant to vacate the premises. Being aggrieved by the same, HRRP No.266/2008 is filed.

The owner of the property being defendant in OS.No.6580/2006 is the appellant in RFA No.1530/2011 and respondent in HRRP No.266/2008. The plaintiff in OS.6580/2006 is the petitioner in HRRP 266/2008 and respondent in RFA No.1530/2011.

Heard Sri Umesha, learned counsel Sri B Janardhana, learned counsel for the appellants in RFA No.1530/2011 and for the respondent in HRRP No.266/2008 and Sri Vasanth V Fernandes, learned counsel for the respondent in RFA No.1530/2011. Learned counsel representing the respondent in RFA.1530/2011 specifically stated that he was not instructed to represent the revision petitioners in HRRP.No.266/2008 and he is not addressing the arguments in the same. Hence, the arguments of revision

10 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

petitioners in HRRP.No.266/2008 is taken as NIL. Perused the materials including the Trial Court records.

Learned counsel for the appellant in RFA No.1530/2011 contended that admittedly, the appellant is the owner of the schedule property, which consists of godown and factory with AC sheet, measuring 24/39 feet. The respondent was the tenant in respect of the same and was paying the rent. On 24.12.2004, plaintiff and defendant entered into an agreement to sell as per Ex.P1. The appellant agreed to sell the same in favour of the plaintiff for a sum of Rs.5,00,000/- at the time of executing the sale deed, an advance of Rs.2,00,000/was paid by the plaintiff. It was agreed between the parties that within six months, the plaintiff shall pay the balance consideration amount and get registered the sale deed. On 25.03.2005, the plaintiff paid additional advance of Rs.50,000/. Inspite of repeated reminders, plaintiff was not ready and willing to pay the balance consideration of Rs.2,00,000/- and to get the sale deed registered.

It is contended that, the defendant has issued legal notice as per Ex.P2 on 25.05.2006 canceling the agreement to

11 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

sell and calling upon the plaintiff to handover the vacant possession of the schedule property and to pay the rent. Plaintiff issued the reply as per Ex.P3 on 27.05.2006 pleading that she is ready and willing to pay the balance amount and to get the sale deed registered. But however, balance amount was never paid. Therefore, defendant has issued the rejoinder as per Ex.P5 on 12.06.2006 insisting for vacating the premises and pay the arrears of rent. Plaintiff again sent another reply as per Ex.P6 on 21.07.2006 seeking execution of the sale deed. However, till date, balance consideration amount was never paid by the plaintiff. Readiness and willingness on the part of the plaintiff was not proved. Under such circumstances, the Trial Court has committed an error in decreeing the suit for specific performance of the contract.

Learned counsel also submitted that the appellant had filed HRC No.473/2006 seeking eviction of respondent herein. The said HRC was allowed directing the respondent to vacate the premises and handover the possession. The respondent has preferred HRRP No.266/2008 before this Court without any basis. When the plaintiff has not proved readiness and willingness to perform his part of contract, the Trial Court

12 -

NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

committed an error in decreeing the suit. Hence, he prays for allowing the RFA and dismissing HRRP in the interest of justice.

Per contra, learned counsel for the respondent in RFA No.1530/2011, opposing the appeal submitted that agreement to sell is dated 24.12.2004. As per the terms of agreement, the sale deed is required to be executed within six months and at the time of registration, the balance consideration amount of Rs.3,00,000/- was required to be paid. The defendant being the owner is required to hand over vacant possession of the schedule property in favour of the plaintiff by clearing all the dues in respect of the same, he is required to hand over the original documents to the plaintiff. Therefore, the defendant was required to make sure that the schedule property is vacant and ready to hand over the possession in favour of the plaintiff, he is required to pay the taxes and keep the original documents ready. It is not the contention of the defendant that he was ready to comply with all these conditions. A portion of the schedule property was in the possession of a tenant and no steps were taken to evict him. Moreover, the tax in respect of the property was also not cleared and the original documents were not handed over to

13 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

the plaintiff. Under such circumstances, it cannot be said that the defendant was ready and willing to perform his part of the contract.

Learned counsel contended that the plaintiff has made it very clear that he was having cash of Rs.3,00,000/with him and he is ready to pay the same. He has replied to the notice that was issued by the defendant calling upon him to fix a date for execution of the sale deed. In-spite of that, no such date was fixed. Therefore, it is to be held that even though the plaintiff was ready and willing to perform his part of contract, the defendant himself was not ready to execute the sale deed by complying with the conditions mentioned in Ex.P1.

Learned counsel contended that even though it is stated that the sale deed is to be executed within six months by accepting the balance consideration amount, the time was not the essence of the contract. Ex.P1 is dated 24.12.2004. The marriage of the daughter of the plaintiff was held in the month of January, 2005. During March, 2005, defendant demanded for additional advance amount and received Rs.50,000/-. Therefore, the contention of the defendant that he had agreed to sell the schedule property in favour of the plaintiff only to

14 -

NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

arrange funds for the marriage of his daughter cannot be accepted. When the marriage of the daughter of the plaintiff was already performed during January, 2005, it cannot be said that the time was essence of the contract.

Learned counsel contended that when the plaintiff categorically stated that he was ready with the balance consideration amount to be paid to the defendant, it is sufficient to accept the readiness and willingness on his part. It is not the requirement of law that the plaintiff should deposit the said amount before the Court nor he is required to tender such amount to the defendant unless he is ready to execute the sale deed as agreed. He further submitted that the plaintiff need not have to produce the passbook or any other documents unless called upon by the defendant. Learned counsel places reliance on the decision of the Hon'ble Apex Court in Basavaraj Vs. Padmavathi and Anr .¹ , in support of his contention. Under such circumstances, the defendant has

failed to establish his defence as taken in the written statement. The materials on record clearly discloses that the defendant was at fault and he never came up to execute the

1 2023 LiveLaw (SC) 17

15 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

sale deed by complying with the conditions mentioned in Ex.P1. Under such circumstances, the plaintiff is entitled for the decree. The Trial Court rightly decreed the suit of the plaintiff and there are no reasons to interfere with the same. Hence, he prays for dismissal of the appeal.

In view of the rival contentions urged by the learned counsel for both the parties, the points that would arise for my consideration are:

"i) Whether the petitioners in HRRP.No.266/2008 has made out any grounds to set aside the judgment and decree dated 24.07.2008 passed in HRC.No.473/2006?

ii) Whether the appellant in RFA.No.1530/2011 has made out any grounds to allow the appeal?"

My answer to the above point No.1 in the 'Negative' and point No.2 in the 'Affirmative' for the following:

REASONS

It is pertinent to note that the respondent in HRRP.No.266/2008 and the appellant in RFA.No.1530/2011 are one and the same. The petitioner in HRC.No.473/2006 had filed the petition under Section 27(a)(d)(i) and (r) of Karnataka Rent

16 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

Act (for short, 'the K.R. Act'), much is said about arrears of rent on the part of the tenant for invoking Section 27(2)(a) of K.R. Act. It is specifically contended that since February, 2005 till May, 2006, the rents were not paid by the tenant and therefore he is liable to be evicted under Section 27(2)(a) of K.R. Act. It is also contended that the petitioner requires the schedule property for expanding her business as the same is very convenient to her and therefore the respondent is liable to be evicted under Section 27(2)(r) of KR Act.

The respondent even though contested the matter, admitted the jural relationship of 'landlord' and 'tenant', denied that the respondent is in arrears of any rent and also denied the requirement of the schedule property by the petitioner for expansion of the business.

PW.1 is the husband of the petitioner and he is the Power of Attorney Holder. A technical defence was raised before the Tribunal that no notice as required under Section 27(2)(a) of K.R. Act was issued calling upon the tenant to deposit the arrears of rent. This fact was not in serious dispute as that the petitioner had never issued such a notice calling upon the tenant to pay the arrears of rent. Under such

17 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

circumstances, the Tribunal had not granted the relief of evicting the tenant under Section 27(2)(a) of K.R. Act. However, with regard to the requirement of the petitioner to get the vacant possession of the schedule property to expand the business, it is spoken to by PW.1. It is stated that the petitioner is running the business under the name and style as "M/s Perfect Industries and Products" and she wanted to expand the industry. PW.1 speaking for the petitioner specifically stated that, initially the said industry was being run in Tavarekere and later it was shifted to Sunkadakatte since the premises in Tavarekere was sold. It is also stated that the industry that is being run in Sunkadakatte is a rented premises. Respondent No.2 who is examined as RW.1 during crossexamination, categorically admits that the petitioner is running the industry under the name and style as "M/s Perfect Industries and Products". The evidence of PW.1 that industry at Sunkadakatte is being run in a rented premises is not disputed. When the petitioner owns a premises of her own, she cannot be compelled to run her industry in a rented premises. Therefore, I am of the opinion that the petitioner is entitled for eviction of the respondent under Section 27(2)(a)(r) of KR Act.

18 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

I have gone through the impugned order passed by the Tribunal allowing the petition under Section 27(2)(r) of the K.R. Act. I do not find any illegality or perversity in the said order. Hence, the same is liable to be confirmed by dismissing the rent revision petition. Accordingly, I answer point No.1 in the 'negative'.

The defendant in O.S.No.6580/2006 being the owner of the premises is impugning the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff for specific performance of contract and directing him to execute the sale deed within four months and to hand over the vacant possession of the schedule property. The relationship of the parties that the appellant being the owner and the respondent being the tenant is not in dispute. HRC.No.473/2006 filed by the owner against the tenant was allowed and the tenant was ordered to be evicted under Section 27(2)(r) of the K.R. Act. In the meantime, the tenant has filed the suit for specific performance of contract based on the agreement to sell dated 24.12.2004.

Ex.P1 is the agreement to sell and execution of this document is not in dispute. As per the terms of Ex.P1, the

19 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

defendant has agreed to sell the schedule property in favour of the plaintiff for a total consideration of Rs.5,00,000/-, out of which, Rs.2,00,000/- was paid in advance on the date of agreement. The balance amount was agreed to be paid within six months. The registration charges and stamp duty was agreed to be borne by the buyer i.e. the plaintiff. The defendant undertook to sell the property free from all encumbrance and put the buyer in vacant possession of the premises. The defendant agreed to clear all the dues including the taxes before registration of the sale deed. It was agreed between the parties that if the buyer i.e. the plaintiff does not complete the sale transaction within the stipulated period, the advance paid is to be forfeited by the defendant.

It is the contention of the plaintiff that defendant was not ready and willing to perform his part of the contract. But Ex.P2 is the notice dated 25.05.2006 issued by the defendant addressed to the plaintiff, highlighting that as per the terms of agreement, the plaintiff was not ready to perform the contract. On the other hand, he expressed inability of the plaintiff to meet the terms of agreement. Therefore, called upon him to return the original and copies of the documents

20 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

and vacate the premises. It is only thereafter on 27.05.2006,

the plaintiff has issued the notice as per Ex.P3, expressing his readiness to pay the outstanding amount as agreed, requesting to arrange for original documents and give a date for registration. Ex.P5 is the notice sent on behalf of the defendant highlighting that Rs.2,00,000/- is due from the plaintiff since the plaintiff was not ready and willing to pay the said amount, the advance amount was forfeited and the agreement is cancelled. Hence, the plaintiff was again called upon to vacate the premises. It is also highlighted in the said reply that there is arrears of rent since from December, 2004 and called upon the plaintiff to pay the same. There is one more reply by the plaintiff as per Ex.P6.

In view of the above, there is no dispute about execution of the agreement as per Ex.P1, payment of advance amount of Rs.2,00,000/- at the time of executing Ex.P1 and Rs.50,000/- at a later date. It is also admitted that a sum of Rs.2,50,000/- is due to be paid under the agreement by the plaintiff and the defendant is required to execute the sale deed by accepting the balance consideration amount.

21 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

It is contended by the learned counsel for the plaintiff that a portion of the schedule property was in the possession of the plaintiff, but a small portion was in the possession of another tenant. But it is the specific contention of the defendant that at the time of execution of the agreement and also at the time of filing the suit, it was only the plaintiff who was in possession of portion of premises and no tenant was in occupation of the same. Under such circumstances, there is no question of taking any steps by the defendant to hand over the entire possession to the plaintiff. Regarding payment of tax, it is not the contention of the plaintiff that the defendant was not in a position to clear off any dues, if any. Regarding handing over the original documents, it could only be at the time of execution of the sale deed, but not in advance. Therefore, virtually the defendant was not required to comply with any conditions, which may take sometime for him. On the other hand, the plaintiff is required to pay Rs.2,50,000/- to the defendant, keep the draft sale deed ready and call upon the defendant to execute the sale deed.

The materials placed before the Court disclose that the plaintiff states that he was having cash with him in his

22 -

NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

house. Under such circumstances, there is no question of calling upon to produce the passbook as tried to be contended by the learned counsel for the plaintiff by relying on the decision in Basavaraj (supra). It is pertinent to note that during the cross-examination of PW.1, he categorically stated that he was not having sufficient cash with him. His father has paid Rs.1,50,000/- and his brother who is at abroad paid Rs.1,00,000/-. There is no such pleading to that effect nor there is any material to substantiate the same. During 2006, keeping an amount Rs.2,50,000/- in the house is something unusual. There is no reason for the plaintiff to keep the said amount in cash without offering to pay to the defendant and calling upon him to execute the sale deed. When it is the contention of the plaintiff that his father and brother have paid the amount to enable him to pay the balance consideration amount, he could have examined anyone of them. Even after the decree of the suit by the Trial Court, the plaintiff never deposited the said amount till today before the Court to prove his bonafide and to show his readiness and willingness to perform his part of contract.

23 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

I am not satisfied with the contention taken by the

plaintiff that he was ready to perform his part of the contract. Admittedly, he has not made any efforts to get the draft sale deed to be approved by the defendant for finalizing the sale deed. The bonafides on the part of plaintiff regarding his readiness and willingness to pay the balance consideration amount is also not proved.

In this regard, the Hon'ble Apex Court in U.N.Krishnamurthy (since deceased) Thr. LR's V/s A.M.

Krishnamurthy² , while rejecting the prayer for specific performance, held that, it is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness would not suffice. Under such circumstances, the plaintiff is not entitled for the relief of specific performance of contract. Moreover, prejudice would be caused to the defendant if he is directed to execute the sale deed in favour of the plaintiff for a paltry sum agreed under Ex.P1 during 2004, when admittedly,

2 2022 Livelaw (SC) 588

24 -

NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

now the property fetches huge sum of money, even if not more than a crore, as contended by the learned counsel for the defendant.

The schedule property, which is the subject matter of Ex.P1, is situated at Saneguruvanahalli of Yeshwanthpura Hobli which is now in the prime locality of Bengaluru City. During 2004, the property was agreed to be sold for Rs.5,00,000/-. Learned counsel for the defendant contends that, today the value of the schedule property is more than a Crore.

There is huge escalation in the value of the property in and around Bengaluru and the same cannot be denied. The reality arising from such drastic economic changes cannot be ignored in deciding cases relating to specific performance. Thus, steep increase in prices is a circumstance which will make it completely inequitable to grant the relief of specific performance, especially in cases where the purchaser does not take steps to complete the same within the agreed period, and the vendor has not been responsible for any delay or nonperformance. Thereby, it must be noted that the principle of time not being the essence of contract relating to immovable

25 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

properties took shape in an era when market values of immovable properties were stable and did not undergo drastic changes over few years. However, inflation has skyrocketed by leaps and bounds in the recent past and we have now arrived in an era where the property prices are no longer stable. I have to take judicial notice of this phenomenon. Under such circumstances, it is not just and proper to direct the defendant to execute the sale deed by receiving the balance consideration amount after this length of time.

It is settled position of law that even if the plaintiff proves his readiness and willingness to perform his part of the contract, the discretion lies with the Court either to grant the relief of specific performance or to deny the same based on the conduct of the parties to uphold fairness and equity. This discretion is to be exercised judiciously. Considering the facts and circumstances of the case, I am of the opinion that exercise of such judicial discretion would lean in favour of the defendant being the owner of the property, rather in favour of the plaintiff who is only a tenant and the agreement holder as per Ex.P1. In the absence of clinching proof regarding the

26 - NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

readiness of the plaintiff to perform the terms of the agreement-Ex.P1, the plaintiff is not entitled for such relief.

I have gone through the impugned judgment passed by the Trial Court. The Trial Court has ignored all these facts and circumstances and placed reliance only on the terms of Ex.P1 which is an admitted document and proceeded to decree the suit. It has not taken into consideration the fact that the plaintiff has failed to prove his readiness and willingness in performing his part of the contract by paying the advance amount. If at all, the plaintiff was ready with the cash as contended by him to be paid as the balance consideration amount, definitely he would have issued notice calling upon the defendant to execute the sale deed. In view of all these facts and circumstances, I am of the opinion that, the Trial Court has committed an error in decreeing the suit of the plaintiff. Hence, the same calls for interference by this Court. Accordingly, I answer point No.2 in the 'affirmative' and proceed to pass the following:

ORDER

i) HRRP No.266/2008 is dismissed with costs .

27 -

NC: 2025:KHC:52959 HRRP No. 266 of 2008 C/W RFA No. 1530 of 2011

HC-KAR

ii) RFA No.1530/2011 is allowed with costs .

iii) The judgment and decree dated 05.08.2011 passed in OS.No.6580/2006 by the learned 17^th Additional City Civil and Sessions Court, (CCH-16) Bengaluru is set aside.

iv) Consequently, the suit of the plaintiff in

OS.No.6580/2006 is dismissed.

SD/(M.G. UMA)

JUDGE

MKM/BH List No.: 1 Sl No.: 11