Sri Arvind S/O Chandrakanth Bellad Vs Smt Zeera Bi

SRI. ARVIND, S/O. CHANDRAKANTH BELLAD, AGED ABOUT 52 YEARS, OCC. BUSINESS AND MANAGING DIRECTOR OF M/S BELLAD AND CO(P) LTD., VIDYANAGAR, HUBBALLI, DHARWAD DISTRICT-580001.

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…APPELLANT

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(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)

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Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.07.09 10:14:51 +0530

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AND:

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SMT ZEHRA BIm W/O. LATE B. MOHAMMED ISMAIL SAB, AGED ABOUT 64 YEARS, OCC. HOUSEHOLD, RESIDING AT WARD NO.24, DOOR NO.24 SHAREEF STREET, COWL BAZAR, BALLARI, BALLARI DISTRICT-583101.

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SRI. ABDUL HAMEED S.B., S/O. LATE B. MOHAMMAD ISMAIL SAB, AGED ABOUT 49 YEARS, OCC. PRIVATE, RESIDING AT WARD NO.24 DOOR NO.24 SHAREEF STREET, COWL BAZAR, BALLARI, BALLARI DISTRICT-583101.

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HC-KAR

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ABDUL RASHEED, S/O. LATE B. MOHAMMAD ISMAIL SAB, AGED ABOUT 39 YEARS, OCC. PRIVATE, RESIDING AT WARD NO.24 DOOR NO.24, SHAREEF STREET, COWL BAZAR, BALLARI, BALLARI DISTRICT-583101.

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B. HARUN BASHA, S/O. LATE B. MOHAMMAD ISMAIL SAB, AGED ABOUT 37 YEARS, OCC. PRIVATE, RESIDING AT WARD NO.24, DOOR NO.24, SHAREEF STREET, COWL BAZAR, BALLARI, BALLARI DISTRICT-583101.

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NASREEN BANU, D/O. LATE B. MOHAMMAD ISMAIL SAB, AGED ABOUT 53 YEARS, OCC. HOUSEHOLD, RESIDING AT WARD NO.24, DOOR NO.24, SHAREEF STREET, COWL BAZAR, BALLARI, BALLARI DISTRICT-583101.

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SHAHEEN BANU, D/O. LATE B. MOHAMMAD ISMAIL SAB, AGED ABOUT 44 YEARS, OCC. HOUSEHOLD, RESIDING AT WARD NO.24, DOOR NO.24, SHAREEF STREET, COWL BAZAR, BALLARI, BALLARI DISTRICT-583101.

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…RESPONDENTS

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 15.09.2021 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BALLARI IN O.S.NO.50/2013 AND CONSEQUENTLY DECREE THE SUIT OF APPELLANTS AND GRANT ANY OTHER RELIEF/S THE APPELLANTS ARE FOUND ENTITLED TO IN THE FACTS AND CIRCUMSTANCES OF CASE.

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HC-KAR

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

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The unsuccessful plaintiff in O.S. No.50 of 2013 on the file of the Principal Civil Judge and CJM, Ballari has filed this appeal challenging the judgment and decree dated 15-092021, by which the suit for specific performance was dismissed.

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(i) The suit in OS No.50 of 2013 was filed for specific performance of the agreement of sale dated 15-092012, executed by defendant Nos.1 to 3 and 5, agreeing to convey the suit property for a total sale consideration of Rs.18,00,000/-. The said defendants had received a sum of Rs.17,00,000/-, and the balance was to be paid at the time of executing and registering the deed of absolute sale conveying the suit property, within which time, the defendants were required to clear of all the dues and keep the documents ready. The plaintiff claimed that after the lapse of three

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months, he requested the defendants to receive the balance sale consideration and to execute the deed of absolute sale. However, defendants were postponing the same on one or the other reason. The plaintiff claimed that he was ever ready and willing to perform his part of the contract, but defendants were delaying the conclusion of the transaction. Accordingly, the plaintiff was advised to seek for specific performance of the aforesaid agreement of sale.

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(ii) The suit was contested by defendant Nos.2 and 3 by filing a written statement, wherein, they contended that on 10-11-2007, defendant No.2 was appointed as Marketing Supervisor on the directions of the plaintiff, who was a Managing Director of the Company. During his service, defendant No.2 had sold 1,400 Ashok Leyland vehicles and thereby the plaintiff was due of a sum of Rs.70,00,000/- being the incentive for the sale of vehicles and arrears of salary. Plaintiff allegedly escaped his liability but on the contrary alleged misappropriation against defendant No.2 so as to dismiss him from service. He claimed that neither he nor any other defendants signed the alleged agreement of sale dated

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15-09-2012. It was contended that one Sri.B.Mohammed Ismail and his wife Smt.Zahira Bi were his parents and without obtaining the signatures of defendant No.2 on page Nos.1 and 2 of the agreement of sale, the signatures were created on the last page of the document by the plaintiff. It was contended that all the children of Mr. B.Mohammed Ismail were entitled to a definite share in the suit property. It was contended that the plaintiff did not pay Rs.17,00,000/- under the agreement of sale as contended. They also alleged that it was created to deceive them and knock off the suit property. The defendant No.2 contended that he worked in a company where the plaintiff was the Managing Director from 12.11.2007 and was honoured with best seller awards in the year 2010-11. He claimed that the plaintiff, in order to promote defendant No.2, obtained sale deeds from him and created the document in question. He claimed that he had issued a notice dated 13.12.2012 for return of the registered documents and some blank signed bond papers. Despite the receipt of the notice, plaintiff neither replied to it nor returned the documents. Again, defendants No.1 and 2 caused a notice on the company where the plaintiff was Managing Director from 14.12.2012.

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However, the company did not return the documents and did not reply to the notice. Feeling threatened by the illegal activities of the plaintiff, defendants No.1 and 3 had lodged a complaint before the Superintendent of Police, Ballari and the PSI of Cowl Bazaar, Rural Police Station, Munirabad Police Station. They claimed that the plaintiff is a known politician in Hubli-Dharwad constituency and had threatened the defendants by lodging false complaint on 24.01.2013 with Munirabad Police Station in Crime No.14/2013. They alleged that the police did not take any action against the plaintiffs for reasons that are obvious. Therefore, defendants No.1 and 2 were constrained to lodge a private complaint in PCR No.35/2014 on the file of the II JMFC, Ballari, which is pending consideration. Defendant No.5 also filed a written statement on the same lines as that of defendant No.2. Defendants No.1 and 4 adopted the written statement filed by defendant No.5.

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(iii) Based on these contentions, the Trial Court framed the following issues:

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1. Whether the plaintiff proves that the defendants have executed an agreement of sale dated 15.09.2012 in favour of the plaintiff for

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Rs.18,00,000/- in respect of the suit schedule property and received the part sale consideration of Rs.17,00,000/- from the plaintiff and agreed to receive balance sale consideration of Rs.1,00,000/at the time of registration of the regular sale deed?

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2. Whether the plaintiff is always ready and willing to perform his part of contract?

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3. Whether the defendants prove that the plaintiff has concocted the agreement of sale as contended in the written statement?

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4. Whether the plaintiff is entitled for the relief of Specific Performance of contract as sought for?

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5. What order or decree?”

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The GPA Holder of the plaintiff was examined as P.W.1 and a

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witness to the agreement of sale was examined as P.W.2 and Exs.P.1 to P.12 were marked. Defendants No.2, 4, 5 and 6 were examined as D.W.1 to D.W.4 and they marked Exs.D.1 to D.12.

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(iv) Based on the oral and documentary evidence, the Trial Court held that the defendants were the owners of the suit property. It also held that the evidence of P.W.1 and the evidence of P.W.2 established that the agreement in question

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was signed by defendants No.1 to 3 and 5. It also compared the signature of defendants No.1 to 3 and 5 on the agreement of sale as well as the vakalath filed by them and held that there was no difference in the signatures. It also examined Ex.P.1 which contained the signature of defendant No.2 and held that the signature of defendant No.2 found on the agreement of sale were similar. Thus, it exercised power under Section 73 of the Indian Evidence Act and held that the contention of the defendants that the signatures were fabricated or forged by the plaintiff was not true. It also collated the evidence of P.W.2 as well the plaintiff’s exhibits and held that the defendants had agreed to sell the suit property for a sum of Rs.18,00,000/- and had received a sum of Rs.17,00,000/- as part of the agreed sale consideration and the plaintiff was required to pay balance consideration at the time of executing and registering a deed of absolute sale. It held that the plaintiff had paid more than 95% of the sale consideration and therefore, he was ready and willing to perform his part of contract. In so far as entitlement of the plaintiff for specific performance is concerned, it held that the suit property belonged to Mr. B.Mohammed Ismail and after

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his death, the defendant Nos.1 to 6 succeeded to it. However, defendants No.4 and 6 who are the children of Mr.Mohammed Ismail were not parties to the agreement of sale. Thus, it held that the plaintiff cannot seek for relief of specific performance against defendants No.4 to 6. However, when it came to refund of earnest money, it held that the plaintiff had not sought for an alternative relief under Section 22 of the Specific Relief Act and therefore held that the plaintiff is not entitled to the relief of specific performance and also for refund of earnest money.

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Being aggrieved by the said judgment and decree,

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the plaintiff is before this Court.

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The plaintiff, during the course of this appeal, had filed an application for amendment of the plaint to incorporate the relief under Section 22 of the Specific Relief Act for refund of the earnest money paid. The said application was allowed in terms of the order dated 17.06.2025. Consequent thereto, the plaintiff has amended the plaint and incorporated the relief for refund of the earnest money paid under the agreement of sale.

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The respondents, though served with the notice, have not appeared.

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The learned counsel for the plaintiff contended that the plaintiff is not interested to pursue the relief of specific performance, but would restrict the relief for refund of money. He contends that the Trial Court has given a finding that the agreement of sale was indeed executed by defendants No.1 to 3 and 5 and that the plaintiff was ready and willing to perform his part of contract. He, further, contends that since the defendants have claimed that defendants 4 and 6, being the legal heirs of Mohammed Ismail, have not signed the agreement of sale, the grant of specific performance would be of no avail as defendants No.4 and 6 may litigate the issue and keep the litigation alive. Therefore, he contends that the alternative relief of refund of the earnest money of Rs.17,00,000/- be ordered.

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Since the respondents have not appeared, we do

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not have the benefit of their submissions. Having regard to the

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contentions of the learned counsel for the appellant/plaintiff,

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the only point that arises for consideration is,

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Whether the plaintiff is entitled for refund of

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earnest money paid under the agreement?

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We have given our anxious consideration to the

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submissions advanced by the learned counsel for the appellant

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and also perused the judgment and decree as well as the records of the Trial Court.

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A perusal of the judgment and decree passed by

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the Trial Court shows that the Trial Court held that the defendants No.1 to 3 and 5 had executed the agreement of sale in question in favour of the plaintiff agreeing to sell the suit schedule property for a total sale consideration of Rs.18,00,000/- and had received a sum of Rs.17,00,000/towards part of the agreed sale consideration. The balance sum of Rs.1,00,000/- was to be paid at the time of conclusion of the sale transaction. The Trial Court also held that the plaintiff was ready and willing to perform his part of contract and that it was the defendants who were postponing the conclusion of sale transaction. This finding of fact is not

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challenged by the defendants. Therefore, in the light of the above said finding, the question that would arise for consideration is, whether the plaintiff was entitled to refund of earnest money paid under the sale agreement.

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Under Section 22 of the Specific Relief Act, the plaintiff is entitled to seek for refund of the earnest fund as an alternative relief in a suit for specific performance. However, the Court is not empowered to grant such a relief unless the plaintiff has pleaded for it. Since the plaintiff did not plead for the refund of earnest money in the plaint when it was originally filed, the Trial Court was justified in not ordering for refund of the earnest money paid under the agreement. Now, that the plaintiff has amended the plaint and has sought for refund which is permissible as the plaint could be amended at any stage of the proceeding, the plaintiff is entitled to relief of refund of earnest money paid under the agreement of sale.

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Accordingly, the appeal is allowed in part. The impugned judgment and decree passed by the Trial Court is modified only to the extent of ordering refund of earnest money of Rs.17,00,000/- received by defendants No.1 to 3 and 5 from

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the plaintiff under the agreement of sale dated 15.09.2012, with interest at the rate of 6% from today till the date of refund. The defendants No.1 to 3 and 5 are jointly and severally liable to refund the aforesaid amount along with interest and proportionate costs.

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Office is directed to draw a decree accordingly.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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VB,KMS CT:PA LIST NO.: 1 SL NO.: 22

Sri Arvind S/O Chandrakanth Bellad v. Smt Zeera Bi

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Sri Arvind S/O Chandrakanth Bellad v. Smt Zeera Bi

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