Shankarappa S/O Satyappa Hanapur Vs Neelavva W/O Basavaraj Hanapur

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NC: 2025:KHC-D:5394 RSA No. 100171 of 2025

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24^TH DAY OF MARCH, 2025 BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100171 OF 2025 (SP-)

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BETWEEN:

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SHANKARAPPA S/O. SATYAPPA HANAPUR, AGE: 38 YEARS, OCC: AGRICULTURE, R/O. BACHANAGOUDA, TQ: BADAMI, DIST: BAGALKOT-587201.

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…APPELLANT

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(BY SRI. B.V. SOMAPUR, ADVOCATE)

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AND:

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NEELAVVA W/O. BASAVARAJ HANAPUR, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O. BACHANAGOUDA, TQ: BADAMI, DIST: BAGALKOT-587201.

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GANGEMALAVVA W/O. HANAMANT KENGAR, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O. SHIRABADAGI, TQ: BADAMI, DIST: BAGALKOT-587201.

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench

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YAMANAVVA W/O. HANAMANTGOUDA SANNAGOUDAR, AGE: 35 YEARS, OCC: HOUSEHOLD, R/O. NAKKARAGUNDI, TQ: BADAMI, DIST: BAGALKOT-587201.

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PUTTAKKA W/O. HANAMAGOUDA GOUDAR, AGE: 32 YEARS, OCC: HOUSEHOLD, R/O. GANGUR, TQ: HUNAGUND, DIST: BAGALKOT-587202.

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YAMANUR @ YAMANAPPA S/O. BASAVARAJ HANAPUR, AGE: 79 YEARS, OCC: AGRICULTURE, R/O. BACHANAGOUDA, TQ: BADAMI, DIST: BAGALKOT-587201.

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…RESPONDENTS

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NC: 2025:KHC-D:5394 RSA No. 100171 of 2025

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO THE JUDGMENT AND DECREE PASSED BY LEARNED SENIOR CIVIL JUDGE AND JMFC, BADAMI IN R.A. NO.14/2021 DATED 15.01.2025 AND JUDGMENT AND DECREE PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, BADAMI IN O.S.NO.94/2013 DATED 23.08.2021 MAY PLEASE BE SET ASIDE SO FAR AS IT RELATES TO DENIAL TO GRANT RELIEF OF SPECIFIC PERFORMANCE IS CONCERNED AND SUIT OF THE PLAINTIFF BE DECREED AS PRAYED FOR BY ALLOWING THIS APPEAL.

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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 E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by the plaintiff challenging the judgment and decree dated 15.01.2025 in R.A.No.14/2021 on the file of the Senior Civil Judge and JMFC, Badami¹ dismissing the appeal and confirming the judgment and decree dated 23.08.2021 in

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O.S.No.94/2013 on the file of the Principal Civil Judge and JMFC, Badami² decreeing the suit of the plaintiff in part.

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1 hereinafter referred to as ‘First Appellate Court’

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2 hereinafter referred to as ‘Trial Court’

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

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It is the case of the plaintiff that the defendant

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is the owner of the suit schedule property and accordingly the defendant was in need of financial aid and as such entered into an agreement of sale dated 05.01.2009, agreeing to sell the suit schedule property for a total consideration of Rs.2 lakhs. On the date of the agreement of sale, the defendant received Rs.1,90,000/- from the plaintiff as advance sale consideration and agreed to receive the balance after clearing the charge over the suit land. It is the case of the plaintiff that the plaintiff was always ready and willing to perform his part of contract and as such issued legal notice dated 19.02.2013 calling upon the defendant to execute the registered sale deed. However, the defendant has replied, denying the prayer made in the legal notice and hence the plaintiff has filed O.S.No.94/2013 seeking relief of specific performance of agreement of sale dated 05.01.2009.

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After service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific contention of the defendant that the defendant has approached for hand loan and in the guise of the same, the plaintiff insisted the defendant to execute the agreement of sale in respect of the suit schedule property and accordingly denied the execution of the agreement of sale as contended by the plaintiff and therefore sought for dismissal of the suit.

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The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined 3 witnesses as PW.1 to PW.3 and produced 7 documents and same were marked as Exs.P.1 to P.7. The defendant has examined himself as DW.1 and got marked 2 documents as Exs.D.1 to D.2.

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The Trial Court after considering the material on record, by its judgment and decree dated 23.08.2021,

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decreed the suit in part and refused to grant the relief of specific performance in favour o the plaintiff, however, the Trial Court held that the plaintiff is entitled for refund of earnest money with interest at the rate of 9% p.a. from the date of sale agreement. Feeling aggrieved by the same, the plaintiff has preferred R.A.No.14/2021 on the file of the First Appellate Court and same was resisted by

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the legal representatives of the defendant. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 15.01.2025, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.94/2013. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal.

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I have heard Sri.B.V.Somapur, learned counsel appearing for the appellant.

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Learned counsel appearing for the appellant

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strenuously contended that both the Courts below have committed an error in refusing to grant relief of specific

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NC: 2025:KHC-D:5394 RSA No. 100171 of 2025

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performance despite the fact that the plaintiff has paid the substantial amount to an extent of 90% of the total sale consideration and therefore sought for interference of this Court. It is also contended by the learned counsel appearing for the appellant that the both the Courts below have committed an error in arriving at a conclusion that the plaintiff has failed to prove his readiness and willingness to complete the transaction.

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It is also contended by the learned counsel appearing for the appellant that the defendant has to rectify certain defects insofar as title to the property is concerned by removing charge over the suit schedule property and therefore the said aspect of the matter was ignored by both the Courts below and accordingly sought for interference of this Court.

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In the light of the submissions made by the learned counsel appearing for the appellant, I have carefully examined the findings recorded by both the Courts below. It is the case of the plaintiff that the

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defendant has agreed to sell the suit schedule property for total consideration of Rs.2 lakhs in terms of the agreement of sale dated 05.01.2009 having received the advance sale consideration of Rs.1,90,000/-. It is also the case of the plaintiff that the defendant refused to comply with the obligation in terms of the agreement of sale and as such the plaintiff got issued legal notice on 19.02.2013 calling upon the defendant to complete the registration of the sale deed in favour of the plaintiff. In order to prove the agreement of sale, the plaintiff has examined the witness as PW.2. On careful examination of the finding recorded by the Courts below makes it clear that sale agreement was entered on 05.01.2009, however, though the plaintiff has stated that he was always ready and willing to perform his part of contract, however, nothing has been shown before the Courts below as to complete the sale transaction within the reasonable period, so also, as per the law of limitation.

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In this regard, taking into consideration that the plaintiff has not proved the readiness and willingness to perform his part of contract and in view of the declaration of law made in the case of C.S.Venkatesh vs A.S.C.Murthy (D) By Lrs . Reported in 2020 3 SCC 280, it

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is the duty of the plaintiff to show the continuous readiness and willingness from the date of the contract and as the same is absent in the present appeal and in view of the fact that both the Courts have rightly held that the plaintiff is not entitled for relief of specific performance, however, ordered for refund of earnest money in favour of the plaintiff and in that view of the matter, as there is no perversity in the judgment and decree passed by both the Courts below, I do not find any merit in the arguments advanced by the learned counsel appearing for the appellant.

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