Marinanjegowda Vs B. K. Yashodhamma

1(A) JAYALAKSHMAMMA W/O LATE MARINANJE GOWDA AGED ABOUT 63 YEARS R/AT MALLEGOWDANA KOPPALU YELAWALA HOBLI, ANANDUR POST MYSORE TALUK – 571 130 BY POWER OF ATTORNEY HOLDER 1(B)

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Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA

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1(B) PARAMESHA

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S/O LATE MARINANJE GOWDA AGED ABOUT 46 YEARS R/AT MALLEGOWDANA KOPPALU YELAWALA HOBLI, ANANDUR POST MYSORE TALUK – 571 130

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1(C) YAMUNAMANI

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W/O S. JAYARAMU AGED ABOUT 45 YEARS R/AT AT MARIGUDI ROAD KOORGALLI VILLAGE BELWADI POST, MYSORE – 570 018 BY POWER OF ATTORNEY HOLDER 1(B)

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…APPELLANTS

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(BY SRI. SUBRAMANYA BHAT P., ADVOCATE)

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AND:

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B. K. YASHODHAMMA W/O. LATE SHIVARAMU, AGED ABOUT 48 YEARS, R/AT RAILWAY STATION ROAD, K.R. SAGARA, BELAGOLA HOBLI, SRIRANGAPATNA TALUK – 571697

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CHAITHRA D/O. SHIVARAMU, AGED ABOUT 26 YEARS,

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BANUPRAKASH S/O. SHIVARAMU, AGED ABOUT 24 YEARS, RESPONDENTS 2 AND 3 ARE R/AT HOOTAGALLI VILLAGE,

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MAHESHA

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S/O LATE MARINANJE GOWDA AGED ABOUT 49 YEARS R/AT MALLEGOWDANA KOPPALU YELAWALA HOBLI, ANANDUR POST MYSORE TALUK – 571130

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…RESPONDENTS

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(R1 TO R3 ARE SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.07.2016 PASSED IN RA NO.31/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC., SRIRANGAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.06.2014 PASSED IN OS NO.193/2007 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., SRIRANGAPATNA.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 30.07.2016 passed in R.A.No.31/2014 by the learned Principal Senior Civil Judge and JMFC, Srirangapattana and the judgment and decree dated 17.06.2014 passed in O.S.No.193/2007 by the learned Principal Civil Judge and JMFC, Srirangapattana.

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For convenience, the parties are referred to,based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for a specific performance of the contract. It is the case of the plaintiff that the defendants are the absolute owners of the

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suit schedule property and they agreed to sell the suit schedule property for a consideration of Rs.5,00,000/-. On 22.07.2002 the defendants executed an agreement of sle in favour of the plaintiff. Accordingly, the plaintiff paid a sum of Rs.3,00,000/towards an advance sale consideration amount on 22.07.2002 and it was agreed that the sale transaction to be completed within 5 years from the date of the sale agreement. It was agreed that the plaintiff shall pay the balance sale consideration amount at the time of execution of the registered sale deed. After the expiry of 5 years, the defendants issued a legal notice on 28.07.2007, to the plaintiff alleging that the plaintiff is not ready and willing to perform his part of contract. The plaintiff issued a reply notice on 06.08.2007 calling defendant No.1 to execute the registered sale deed. Defendant No.1 again issued a rejoinder to the reply notice refusing to perform her part of a contract. Hence, a cause of action arose for the plaintiff to file a suit for

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specific performance of contract. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement denying the averments made in the plaint except admitting that defendant No.1 is the absolute owner of the suit schedule property and admitted the execution of sale agreement. It is contended that the suit filed by the plaintiff is barred by limitation. It is contended that the plaintiff was/is not ready and willing to perform his part of the contract. Hence, prays to dismiss the suit.

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Defendants No.2 and 3 filed a joint written statement contending that the suit properties is a joint family property and alleged sale agreement was not for their benefit. Accordingly, prays to dismiss the suit.

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The trial Court based on the pleadings, framed the relevant issues.

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The plaintiff, to substantiate his case, examined

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himself as PW-1, examined 4 witnesses as PW-2 to PW-5 and marked 5 documents as Ex.P.1 to Ex.P.5. In rebuttal, defendant No.1 was examined as DW-1 and defendant No.2 was examined as DW-2 and no documents were marked.

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The trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issues No.1, 2, 4 to 7 in the negative, issue No.3 partly in the affirmative, and issue No.8 as per the final order. The suit of the plaintiff was partly decreed and the plaintiff was entitled to a refund of the earnest money of Rs.3,00,000/- in pursuance of the agreement of sale deed dated 22.07.2002, within one month from 17.06.2014. In case, if the defendants fail to refund the earnest money of Rs.3,00,000/- within one month from 17.06.2014, the plaintiff was entitled to the interest at the rate of 2% per month on the earnest money from the defendants. The

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trial Court dismissed the suit for specific performance filed by the plaintiff vide judgment dated 17.06.2014.

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The plaintiff, aggrieved by the dismissal of the suit for specific performance of a contract in O.S.No.193/2007, preferred an appeal in R.A.No.31/2014 on the file of the learned Principal Senior Civil Judge and JMFC, Srirangapattana. The first appellate Court, on reassessing the verbal and documentary evidence, dismissed the appeal vide judgment dated 30.07.2016, confirming the judgment and decree passed in O.S.No.193/2007. The plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the legal representatives of the plaintiff.

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Learned counsel for the legal representatives of the plaintiff submits that defendant No.1 had agreed to sell the suit schedule property and accordingly received Rs.3,00,000/- towards an advance sale consideration

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amount and executed a sale agreement on 22.07.2002. He

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also submits that defendant No.1 had to execute a registered sale deed within 5 years from the date of execution of the sale agreement. He submits that the plaintiff to prove that he was/is ready and willing to perform his part of the contract issued a reply notice Ex.P.3 calling upon the defendants to receive the balance sale consideration amount and execute a registered sale deed. He submits that the Courts below have committed an error in recording a finding that the plaintiff was/is not ready and willing to perform his part of a contract and dismissed the suit. The first appellate Court has not reappreciated the entire evidence on record properly and simply affirmed the judgment and decree passed by the trial Court. Hence, on these grounds he prays to allow the appeal.

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Perused the records and considered submissions of the learned counsel for the legal representatives of the plaintiff.

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The plaintiff has filed a suit for specific performance of a contract contending that defendant No.1 agreed to sell the suit schedule property for a consideration of Rs.5,00,000/- and accordingly defendants received a sum of Rs.3,00,000/- towards an advance sale consideration amount. It was agreed that the registered sale deed to be executed within 5 years from the date of execution of the sale agreement after receiving the balance consideration amount. The plaintiff issued a reply notice as per Ex.P.3 calling upon defendant No.1 to receive the balance sale consideration amount and execute a registered sale deed.

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The trial Court recorded a finding that, during the cross-examination of DW-1 by the plaintiff’s counsel, it was suggested that the plaintiff is well to do and economically sound person. It also makes me understand that, if the plaintiff was not having any financial difficulty, what was the embargo for not approached the defendants

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in time. The trial Court, has recorded a finding that the plaintiff has failed to establish that the plaintiff was/is always ready and willing to perform his part of a contract. The trial Court refused to grant the relief of specific performance of a contract on the ground that the plaintiff was unable to prove his readiness and willingness in performing his part of the contract.

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The first appellate Court, on reassessing the verbal and documentary evidence, held that the plaintiff has failed to prove that he was/is ready and willing to perform his part of a contract and held that the plaintiff has failed to prove the requirements of Section 16 (c) of the Specific Relief Act. Also held that the plaintiff is not entitled to the relief of specific performance of a contract. The trial Court, while exercising discretion under Section 20 of the Specific Relief of Act, provided a sound reasoning to dismiss the suit for specific performance of a contract. Both the Courts below have concurrently recorded a finding of the fact that the plaintiff has failed to establish

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the requirements, of Section 16(c) of the Specific Relief

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Act and have rightly passed the impugned judgments, hence I do not find any error in the impugned judgments or any Substantial Question of Law, that arises for consideration in this appeal.

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