Sri N S Mohan Vs Sri Lingappa Naika

SRI. A.N. RAMASWAMY S/0 ALIGE NAGAPPA NAIKA, AGED ABOUT 54 YEARS, R/O KAGGA VILLAGE, KASABA HOBLI, BOMLAPURA POST, KOPPA TALUK, CHIKMAGALUR DISTRICT – 577 101

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DR. D.B. FAQR-UD-DIN S/0 LATE KAJA SAHEB, AGED ABOUT 66 YEARS, ASST. PROFESSOR KARNATAKA REGIONAL ENGG. COLLEGE, SURATHKAL, R/AT SRINIVASA NAGAR, SURATHKAL - 574 157 DAKSHINA KANNADA DIST.

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SMT. D.B. RAZIA FAQR-UD-DIN @ RAZIA D.B., AGED ABOUT 57 YEARS, W/O DR.D.B. FAQR-UD-DIN, R/AT SRINIVASA NAGAR, SURATHKA - 574 157. DAKSHINA KANNADA DISTRICT

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SRI. M.V. SUBBARAO S/0 VENKATAPATHAIAH, AGED ABOUT 68 YEARS, PROPRIETOR OF MALUR SUBBA RAO & SONS, SHIMOGA – 587 301

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…RESPONDENTS

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NC: 2025:KHC:30729 RSA No. 1076 of 2013

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HC-KAR

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(BY SRI. BASAVARAJAIAH N., ADVOCATE FOR R2 TO R5; R1, R6 TO R8 – SERVICE OF NOTICE IS DISPENSED WITH, VIDE COURT ORDER DATED 31.07.2025)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 08.01.2013 PASSED IN R.A.NO.142/2010 ON THE FILE OF THE ADDL. DISTRICT JUDGE, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 03.03.2010 PASSED IN OS.NO.33/1997 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & CJM, SHIMOGA.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is arising out of concurrent finding for suit for specific performance. The plaintiff sought for specific performance and permanent injunction.

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An agreement is dated 08.07.1991. According to the plaintiff Rs.1,50,000/- was consideration amount and plaintiff claims to have paid Rs.1,25,000/- on the date of agreement itself. It is further stated that there was outstanding loan on the property and defendants were required to clear the loan and execute the sale deed in

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NC: 2025:KHC:30729 RSA No. 1076 of 2013

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HC-KAR

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favour of the plaintiff after receiving the balance of Rs.25,000/-.

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The suit is filed in the year 1997. Defendant Nos.3 and 4 are purchasers of the property and defendant No.5 is the Power of Attorney of defendants No.1 and 2, who sold the property to defendants No.3 and 4 under registered sale deed dated 06.02.1993. Thus, purchasers are also arrayed as parties.

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Defendants disputed the execution of sale deed

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dated 08.07.1991. It is their contention that they had borrowed money from the plaintiff and agreement was executed as a security for the loan borrowed. Defendants No.3 and 4 took contention that they are bonafide purchasers of the property. However, the issue is not framed regarding contention of bonafide purchase.

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The Trial Court on the proof of agreement has concluded that defendants No.1 and 2 have received consideration amount of Rs.1,25,000/- and agreed to sell the property after obtaining clearance from the Karnataka State

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5 - NC: 2025:KHC:30729 RSA No. 1076 of 2013

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HC-KAR

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Financial Corporation. However, the Trial Court also recorded a finding that the plaintiff has not established the readiness and willingness to fulfill his part of the contract. The Trial Court also held that the time is essence of contract and further, concluded that defendant No.3 and 4 have purchased the property under registered sale deed from defendants No.1 and 2.

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Since the Trial Court has concluded that the plaintiff was not ready and willing to perform his part of contract and the time is essence of the contract, specific performance was not granted and the decree for refund of Rs.1,25,000/- along with interest at the rate of 8% per annum, compounded yearly is granted.

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First Appellate Court has also dismissed the appeal confirming the judgment and decree passed by the Trial Court. The First Appellate Court framed the following points for consideration as under:

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i) Whether the appellant/plaintiff is entitled for specific performance of agreement of sale dated 08.07.1991, sought by him?

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6 - NC: 2025:KHC:30729 RSA No. 1076 of 2013

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HC-KAR

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ii) Whether defendants No.3 and 4 have proved that they are the bonafide purchasers for value of the suit property under the registered sale deed dated 06.02.1993?

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First Appellate Court held that the plaintiff is not

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entitled to relief of specific performance as he has not demonstrated readiness and willingness to perform his part of contract which is of the year 1991. The suit is filed in the year 1997. In addition, First Appellate Court also noticed that defendants No.3 and 4 were the bonafide purchasers of the property without notice of the agreement for sale dated 08.07.1991.

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Nothing on record is placed to hold that defendants No.3 and 4 were aware of the sale agreement dated 08.07.1991.

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Considering the contentions raised by learned counsel for the appellant who vehemently urged that having recorded a finding that Rs.1,25,000/- is paid by the plaintiff out of sale consideration of Rs.1,50,000/-, the Trial Court

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7 - NC: 2025:KHC:30729 RSA No. 1076 of 2013

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HC-KAR

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and First Appellate Court could not have held that the plaintiff was not ready and willing to perform his part of contract, this Court is of the view that the suit is filed in the year 1997 to enforce the agreement dated 08.07.1991. This being the position, finding recorded that the plaintiff has not proved his readiness and willingness, is certainly a plausible view. Had the plaintiff really intended to purchase the property, after having paid the substantial amount, without having taken the possession, would have been keen in getting the sale deed executed in his favour and would not have waited for 7 years to file the suit. More than anything, defendants No.3 and 4 have purchased the property vide registered vide sale deed dated 06.02.1993 and nothing is available on record hold that they were aware of agreement of sale dated 08.07.1991.

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This being the position, this Court does not find any reasons to interfere with the judgment and decree passed by the Trial Court and First Appellate Court in exercise of jurisdiction under Section 100 of Code of Civil Procedure.

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