Smt.N.C.Shashikala Vs Sri C.S.Chandrashekaraiah — Karnataka HC (2025) — LawSathi Research

Smt.N.C.Shashikala Vs Sri C.S.Chandrashekaraiah — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

None to the appellant; the appeal was dismissed with no order as to costs, leaving the trial Court's judgment and decree decreeing specific performance undisturbed.

Issue for consideration

Whether the findings of the Trial Court require any interference? +2 more

Court's answer

The suit, having been filed within the period of limitation, was not hit by delay and laches.

Ratio / Principle

The agreement for sale was duly proved by the Power of Attorney holder of the plaintiff acting on the plaintiff's behalf; the appellant's contention that the agreement was not duly proved cannot be accepted.

Key takeaways

The GPA holder (PW1), though not a signatory to the agreement, was present at the discussions leading up to the agreement and was aware of its terms, supporting proof of the agreement through him.ratio¶¶89
Since execution and registration of the agreement dated 17.04.2007 was not seriously disputed and the supplementary agreement was not specifically denied in the written statement, the trial Court's finding that the agreement stood proved cannot be found fault with.ratio¶¶106

Detailed headnote1 paragraphs

Specific performance — Regular First Appeal under Section 96 CPC against decree of Senior Civil Judge & JMFC, Doddaballapura in O.S.No.55/2010 — Registered agreement to sell dated 17.04.2007 (Ex.P2) for Rs.47,50,000/- with supplementary agreement (Ex.P3) and further advance of Rs.9,29,000/- — Agreement held duly proved through plaintiff's GPA holder (PW1), who, though not a signatory, was present at the negotiations and aware of the terms — Written statement did not seriously dispute execution/registration of the agreement nor specifically deny the supplementary agreement or the passing of consideration — Defendant's plea that the transaction was a loan, resting on an unregistered 'Eduru Kararu Patra' dated 12.05.2008, unsupported: no evidence adduced despite thirteen adjournments, no offer to repay, unregistered document rejected by the trial Court — Suit filed within limitation; no delay or laches — Ample opportunity to defend held afforded; no violation of natural justice — Trial Court's judgment and decree requiring no interference; appeal dismissed, no costs. (High Court of Karnataka, DB: Anu Sivaraman & Vijaykumar A. Patil JJ., 04.02.2025)

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4^TH DAY OF FEBRUARY, 2025

PRESENT

THE HON'BLE MRS. JUSTICE ANU SIVARAMAN

AND

THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

REGULAR FIRST APPEAL NO.1358 OF 2014 (SP)

BETWEEN:

SMT. N.C. SHASHIKALA W/O C. RAMAKRISHNAIAH AGED 38 YEARS R/AT. SHREE MATHRU NILAYA DOOR No.231, II FLOOR, 6^TH CROSS 1^ST MAIN ROAD, SHIVANAGAR RAJAJINAGAR BENGALURU-560 010

...APPELLANT

(BY SRI. K.N. NITISH, ADVOCATE)

AND:

SRI. C.S. CHANDRASHEKARAIAH S/O SIDDALINGAPPA AGED 64 YEARS R/AT. No.3407, SHANTHINAGAR MUTYALAMMA TEMPLE ROAD DODDABALLAPURA-561 203

…RESPONDENT

(BY SRI. M.V. VEDACHALA, ADVOCATE)

THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.06.2014 PASSED IN O.S.No.55/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, DODDABALLAPURA, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE AND ETC.

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THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 20.01.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

CAV JUDGMENT

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

The defendant is before this Court, in this RFA, assailing the legality and correctness of the judgment and decree dated 23.06.2014 passed in O.S.No.55/2010 on the file of Senior Civil Judge and JMFC at Doddaballapura (hereinafter referred to as 'the trial Court' for short).

For the sake of convenience, the parties are referred to as per the rankings before the trial Court.

Brief facts of the case are as follows:-

The learned counsel appearing for the appellant/defendant would submit that the

respondent/plaintiff instituted O.S.No.55/2010 before the Senior Civil Judge and JMFC at Doddaballapura, seeking specific performance of an agreement to sell dated 17.05.2007 - Ex.P2. The suit properties comprising of six

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items of property were owned by the appellant/defendant, who as the absolute owner, entered into an agreement to sell for a sale consideration of Rs.47,50,000/-. As per the agreement, the sale deed was to be executed within 14 months. It was stated, the amount which is stated in the plaint that the defendant had agreed to furnish additional documents as detailed in clause 9 of the agreement within three months and that a sum of Rs.32 Lakhs was paid to the defendant by way of cheques on various dates towards the part payment of the sale consideration.

Subsequently, on 04.03.2008, a supplementary agreement - Ex.P3 was executed, wherein further advance amount of Rs.9,29,000/- was paid leaving a balance of Rs.6,21,000/-. The plaintiff alleged that despite his readiness and willingness to perform his part of the contract, the defendant delayed execution of the sale deed. A legal notice issued by the plaintiff to the defendant did not yield any result, prompting him to seek a decree for specific performance.

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The defendant in her written statement denied

the execution of any agreement to sell and contended that the transaction was purely a financial arrangement and relied on a later agreement dated 12.05.2008, wherein the plaintiff acknowledged that the transaction was monetary in nature and agreed that Ex.P2 would stand cancelled upon repayment of the amount by the defendant. The defendant alleged suppression of the material fact by the plaintiff and sought dismissal of the suit asserting that it was not maintainable.

The trial Court based on the pleadings, framed

the following issues for its consideration:-

Whether plaintiff proves that defendant had agreed to sell the suit schedule property for valuable consideration amount of Rs.47,50,000/and executed agreement for sale by receiving an amount of Rs.32,00,000/- advance?

Whether plaintiff further proves that defendant had received further advance amount of Rs.9,29,000/and executed supplementary agreement dated 0403-2008?

Whether plaintiff proves that he is always ready and willing to perform his part of contract?

Whether defendant proves that she is having money transaction with plaintiff?

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Whether plaintiff is entitled for the relief sought by him?

In order to substantiate their claim,

Dr.N.Rajashekar, the GPA holder of plaintiff examined himself as PW1 on behalf of the plaintiff and got marked the documents as Exs.P1 to P6. On the other hand, defendants neither adduced any evidence nor produced any documents.

Based on the pleadings, oral and documentary evidence, the trial Court decreed the suit with costs, directing the defendant to execute a registered sale deed in respect of the suit schedule property in favour of the plaintiff upon receipt of the balance sale consideration amount of Rs.6,21,000/-. In the event of defendant's failure to execute the registered sale deed, the plaintiff was given liberty to have sale deed executed through the process of Court. Upon execution of the sale deed, the defendant shall deliver possession of the suit schedule property to the plaintiff, failing which, the plaintiff is entitled to recover possession through the process of the Court.

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It is contended by Shri. K.N. Nitish, learned

counsel appearing for the appellant/defendant that PW.1, Shri.N.Rajashekhar, the GPA holder of the plaintiff is not a competent witness to depose on behalf of the plaintiff as he lacks personal knowledge of the alleged agreement. He admitted that the plaintiff could transact independently with the aid of hearing device and does not require assistance of PW.1 for managing transactions. Consequently, deposition of PW.1 is irrelevant in proving the alleged agreement. No other witnesses to the alleged suit agreement or the scribe of the agreement were examined, rendering the agreement unsubstantiated. Additionally, the pleadings state that Rs.32,00,000/- was paid on the date of the alleged agreement (Ex.P2). However, the cheques referred to are dated 12.02.2007, and it is stated that Rs.28,00,000/- had been paid under an earlier agreement, which contradicts pleadings and oral evidence. The agreement dated 12.02.2007, referred to in Ex.P2, was neither been pleaded nor produced. Further, there is no evidence of cheque

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handover or encashment, as plaintiff's account details have not been furnished.

It is further contended that PW.1 admitted that

the plaintiff did not verify the defendant's title documents before entering into an agreement. The plaintiff solely relied on the defendant's verbal assurance which is improbable wherein the huge amount of Rs.32,00,000/- was involved. The agreement set 14 months period for obtaining public documents, which seems unreasonably long and undermines the plaintiff's contention. Moreover, there was no necessity or explanation for entering into supplementary agreement before completion of 14 months. PW.1 also stated that on the date of entering into an agreement as per Ex.P2, a sum of Rs.15,00,000/- had been paid by way of cheque and remaining by cash.

It is contended that on 12.05.2008, an "Eduru Kararu Pathra" was executed, acknowledging the transaction as a loan. Although PW.1 was confronted with this document, the trial Court erred by not marking it in

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evidence. After issuing a notice on 10.02.2009, the plaintiff remained silent until filing of the suit on 06.04.2010. This delay remains unexplained, demonstrating laches on the part of the plaintiff. Despite the defendant's inability to appear before the trial Court due to head injury in November 2013, she was not given sufficient opportunity to present evidence. Medical records were submitted on 18.12.2013. Evidence was closed as NIL on 07.03.2014, ignoring her adjournment requests on 31.05.2014 and 10.06.2014. The trial Court is erred in considering the readiness and willingness of the plaintiff. The trial Court drew adverse inferences against the appellant, disregarding her health and failing to grant her reasonable opportunities to present evidence and arguments, which amounts to violation of principles of natural justice.

It is contended that the trial Court deprived her of a fair opportunity to defend her case. The trial Court correctly framed issues No.1 and 2, placing the burden on the plaintiff to prove agreements at Ex.P2 and Ex.P3, the plaintiff failed to substantiate his claims. Neither the scribe

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nor the attesting witnesses to the agreements were examined, leaving the agreements unproved. The testimony of PW.1, the alleged GPA holder of the plaintiff, lacked credibility and competence. PW1 was neither a party to the agreements at Ex.P2 and Ex.P3 nor present when they were executed. His testimony regarding the agreements and alleged consideration was untrustworthy and insufficient to establish the plaintiff's claims.

It is contended that the plaintiff failed to demonstrate his financial capacity to pay the consideration amount and prove his willingness to perform his contractual obligations. The trial Court also had failed to mark the agreement dated 12.05.2008, which was confronted to PW.1 during his cross-examination; this impacted defendant's ability to contest the plaintiff's claim effectively. The trial Court unjustly drew adverse inference against the defendant, disregarding her health condition and failing to grant her reasonable opportunity to present evidence and arguments.

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In support of the contentions, the reliance was

placed in the following decisions:-

H.M. Mahadevappa and another v. P. Lokesha by order dated 28.06.2024 passed in RSA No.139/2018(SP) ; and

Rajesh Kumar v. Anand Kumar and Others in Civil Appeal No.7840/2023 dated: 17.05.2024 .

Per contra , Shri. M.V. Vedachala, learned counsel appearing for the respondent/plaintiff contends that on 17.04.2007, the defendant executed a registered agreement of sale in favour of the plaintiff, agreeing to sell the suit properties for a consideration of Rs.47,50,000/-. The agreement was registered on 23.04.2007 as Document No.2578/2007-08 stored in CD No.DBPD113 at the office of the Sub-registrar, Doddaballapur. As per the terms of the agreement, the defendant agreed to execute a registered sale deed within 14 months from 17.04.2007 and to furnish additional documents within three months from that date. The plaintiff had paid a sum of Rs.32,00,000/- as an advance through cheques. However, the defendant failed to fulfil her obligations within the stipulated time.

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It is contended that in March 2008, the defendant requested further advance of Rs.9,29,000/- and sought an extension of 12 months to perform her obligations. Consequently, a supplementary agreement was executed on 12.05.2008 which was registered as Document No.559/2008-09, stored in CD.No.DBPD146 at the office of the Sub-Registrar, Doddaballapur. With this, the plaintiff had paid a total advance of Rs.41,29,000/-. Despite this, the defendant wilfully failed and neglected to execute the registered sale deed as per the terms of the original and supplementary agreement.

It is further contended that on 10.02.2009, the plaintiff issued a legal notice to the defendant, urging her to fulfil her part of obligation under the agreement. The plaintiff was ever been ready and willing to perform his part of the agreements since their execution. However, the defendant has repeatedly postponed the execution of the registered sale deed and has even threatened to alienate the

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suit properties to third parties to deprive the plaintiff's legitimate rights.

It is contended that the execution of the registered agreement to sell on 17.04.2007 and the supplementary agreement on 04.03.2008 was not specifically denied by the appellant in her written statement. Further, the fact that an amount of Rs.32 Lakhs had been paid by the plaintiff as consideration towards sale of six items of property and that a further advance amount of Rs.9,29,000/- was paid in March, 2008 had also not been specifically denied by the appellant. The only case of the appellant was that the transactions were financial transactions and that there was a separate agreement on 12.05.2008, which provided that on repayment of the amounts barrowed the properties would be re-conveyed to the appellant. It is submitted that though ample opportunity had been given to the appellant she did not adduce any oral or documentary evidence and that in the light of the stand taken by the appellant in the written statement, the trial Court was perfectly justified in decreeing the suit.

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In support of the contentions, reliance was placed

on the following judgments:-

Iswar Bhai.G.Patel @ Bachu Bhai Patel v. Harihar Behera and Another reported in AIR 1999 SC 1341; and

P.Ramasubbamma v. V.Vijayalakshmi & Others reported in 2022 Live Law (SC) 375 .

We have considered the contentions advanced

and also given our anxious consideration to the pleadings

and the materials on record. The questions, which arise for consideration before us are:-

(i) Whether the findings of the Trial Court require any interference?

(ii) Whether the agreement stands proved and whether the GPA holder of the plaintiff was a competent witness to prove the agreement to which he is not a party?

(iii) Whether the appellant who was a defendant in the suit was given proper opportunity to adduce evidence?

We notice that the suit averments were to the

effect that the agreement for sale was executed on

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17.04.2007 in respect of six items of property measuring about 79 and a 1/2 guntas in total. The agreed sale consideration was Rs.47,50,000/out of which

Rs.32,00,000/- was paid as advance, the balance was agreed to be paid when the Sale Deed was being registered.

The time for registration of Sale Deed was fixed at 14 months from the date of agreement to sell. It was contended that on 04.03.2008, an additional amount of Rs.9,29,000/- was paid and the time for executing the Sale

Deed stood fixed as 12 months from the said date. Thereafter, notice was issued on 10.02.2009 and the suit was filed on 06.04.2010. The defendant had set up a defense that the transaction in question was a loan transaction and the agreement was executed only as a security for the said loan. It is submitted that a supplementary agreement or an 'Eduru Kararu Patra' was executed between the parties on 12.05.2008. The appellant contends that the agreement for sale is not proved in view of the fact that the GPA holder of the plaintiff had given evidence as PW.1 and the plaintiff chose not to take the

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stand. However, we notice from the evidence of PW.1 that it is specifically contended that PW.1 was present at the time of the discussions between the parties leading up to the agreement and that though he was not a signatory to the agreement, he was aware of the terms of the agreement.

Further, the learned counsel for the appellant would contend that the agreement itself would show that there was an earlier agreement for sale dated 12.02.2007 which did not fructified the amount paid as consideration in respect of that agreement was agreed to be taken as part of advance consideration amount for the subject agreement dated 17.04.2007. It is contended that there is no such averments in the plaint. It is contended that though Ex.P4 - notice was issued on 10.02.2009, the suit itself was filed only on 06.04.2010 and there is no explanation for the delay in approaching the Court. It is stated that since specific performance is a discretionary remedy, even without evidence having been adduced by the defendant, the trial Court ought to have found that the agreement was not

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proved since the plaintiff was not examined; and adverse inference ought to have been drawn against the plaintiff. It is further contended that though PW.1 had been confronted with 'Eduru Kararu Patra' dated 12.05.2008, the same was omitted to be marked by the trial Court at-least subject to proof, in which case the said document would have been available in the records for consideration by this Court.

The relevant contentions in the written statement filed by the defendant are as follows:-

" 20. Defendant states that during third week of April, 2007 she had approached the plaintiff and appraised her about the economical crises faced by her family and requested plaintiff to help her economically. The defendant has also requested plaintiff for the hand loan. Defendant states that the plaintiff has accepted to lend the money in the form of hand loan to the defendant. Defendant states that later while giving the cash amount as hand loan, plaintiff has insisted and demanded defendant to execute a document before the SubRegistrar's office, Doddaballapur. Defendant states that on 17.04.2007, she had appeared before the SubRegistrar's office and after going through the document, she came to know that plaintiff has prepared the document as an agreement to sell. Defendant resisted the act of the plaintiff and appraised him that she is availing the loan on the schedule properties and the

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transaction is a mortgage and the document has to be executed as a mortgage only. Defendant states that plaintiff has given an evasive reply and insisted defendant to execute the agreement to sell in his name. Plaintiff has also given an undertaking to cancel the agreement to sell immediately after the payment of the cash amount. Defendant believing the words of the plaintiff has executed the agreement to sell.

21. Defendant states that plaintiff has summoned defendant on 04.03.2008 and insisted her to execute another document before the Sub-Registrar's office towards the amount availed by the defendant. Defendant believing the words of plaintiff, has gone to the Sub-Registrar's officer and on enquiry, she learnt that plaintiff has prepared a supplementary agreement asserting the agreement to sell dated 17.04.2007. Defendant resisted the act of the plaintiff. Plaintiff has given a reply alleging that the interest was calculated and the additional supplementary agreement was prepared which included the principal amount paid on 17.04.2007 and the interest accrued to it. Defendant believing the words of plaintiff, has signed the document. x x x x x."

We notice from a consideration of the written

statement filed on behalf of the appellant before the trial Court that the execution and registration of the agreement dated 17.04.2007 is not seriously disputed. The supplementary agreement is not specifically denied. There

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is also no specific denial of the fact that amounts had changed hands between the parties. Though a contention was raised that the transaction was a loan transaction, there was no offer to repay the loan with interest.

With regard to an unregistered document, which is styled as 'Eduru Kararu Patra', the same had been rejected by the Court since it was an unregistered document. The defendant had not adduced any evidence in the case. No attempt was made to take the stand or mark any document including the alleged agreement dated 12.05.2008.

The Power of Attorney holder of the plaintiff has given evidence on behalf of the plaintiff with regard to the agreement and the contents thereof. The agreement is a registered agreement for sale and there is no contention raised in the written statement that is fraudulent one or that the execution is specifically denied. We are of the opinion that the contentions raised by the appellant that the agreement dated 07.04.2007 is not duly proved, cannot be

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accepted. The agreement was proved by the Power of Attorney of the plaintiff acting on his behalf. He was the son-in-law of the plaintiff and has spoken of having personal knowledge of the transactions between the parties. It is also pertinent to note that there is no specific denial of the execution of the agreement for sale and the passing of the consideration in the written statement.

In the above view of the matter, we are of the opinion that the finding of the trial Court that the agreement stood proved cannot be found fault with. Having not denied the execution of the agreement or the money transactions between the parties, it was for the defendant to have adduced evidence in support of his contentions that the transaction was only a loan transaction even if that were to be accepted. We also notice that there was absolutely no offer made to repay the amount to the plaintiff. Though it is contended in the written statement that the consideration is totally inadequate, no evidence is on record to prove the said aspect. The decisions relied on therefore cannot help the appellant.

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In the above circumstances, we are of the opinion that the contention that the suit which was filed within the period of limitation was hit by delay and laches also, cannot be accepted. Further, with regard to the contention that the defendant was denied an opportunity to adduce evidence, we notice that PW.1 was examined on 06.08.2013. Thereafter, the matter stood posted on several occasions for the defendant's evidence. Thirteen adjournments appeared to have been granted for the defendant to adduce evidence. Even if all the contentions of the defendant with regard to her undergoing motor vehicle accident are accepted in full, it appears that the accident had occurred in the month of November 2013 and the injuries mentioned would not have presented adducing of evidence by the defendant. No application to examine the defendant on commission has also been made. It is also contended that the defendant's husband was a Government Servant and was perfectly well aware of the consequences of not adducing evidence in a suit for specific performance.

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Having considered the contentions advanced, we are of the opinion that the trial Court was therefore well justified in arriving at a conclusion that the agreements stood proved in the light of lack of counter evidence by the defendant. We also find that the defendant had been provided ample opportunity to adduce evidence which was not availed of. The reliance placed on the evidence adduced by the plaintiff, therefore, cannot be said to be unfounded.

In the above factual situation, we are of the opinion that the judgment and decree of the trial Court does not require interference. The appeal fails and the same is

accordingly dismissed .

In the facts and circumstances of the case, there is no order as to costs.

Sd/(ANU SIVARAMAN) JUDGE

Sd/(VIJAYKUMAR A. PATIL) JUDGE

cp*