Sri H S Jayaramaiah Vs Sri H S Basavaraju

VASANTHAMMA D/O LATE H S JAYARAMIAH W/O LINGADEVARU AGED ABOUT 38 YEARS R/AT PAPANAKONA VILLAGE BELAGULI POST HANDANAKERE HOBLI CHIKKANAYAKANAHALLI TALUK TUMAKUR

¶25

GOWRAMMA H J D/O LATE H S JAYARAMIAH W/O RAJASHEKAR AGED ABOUT 36 YEARS R/AT UDEVU BEEDI, NEAR MARKET CHIKKANAYAKANAHALLI TOWN CHIKKANAYAKANAHALLI TALUK TUMAKUR

¶26

…RESPONDENTS

¶27

(BY SRI M B CHANDRACHOOD, ADVOCATE FOR R1; SRI ANAND V, ADVOCATE FOR R2 TO R4)

¶28

3 -

¶29

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶30

HC-KAR

¶31

THIS RSA IS FILED UNDER ORDER XLII RULE (1) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.10.2020 PASSED IN R.A.NO.17/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT GUBBI AND ETC.

¶32

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

¶33

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

¶34

ORAL JUDGMENT

¶35

This appeal is filed challenging the judgment and decree dated 12.10.2020 passed in R.A.No.17/2018 on the file of the Senior Civil Judge and JMFC, Gubbi.

¶36

Heard the learned counsel appearing for the respective parties.

¶37

The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of specific performance is that the appellants herein have entered into an agreement of sale agreeing to sale the property for sale consideration of Rs.99,000/- and out of the said sale consideration, an amount of Rs.95,000/- was paid and

¶38

4 -

¶39

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶40

HC-KAR

¶41

balance amount payable is Rs.4,000/- at the time of registration and the defendants have to furnish the documents for the registration but they did not furnish any documents and not obtained any sketch. Hence, legal notice was issued on 18.02.2013 to execute the sale deed but the defendants gave untenable reply and hence, approached the Court for the relief of specific performance.

¶42

The defendants appeared though their counsel and defendant No.4 has filed his written statement and defendant Nos.1 to 3 have adopted the same. In the written statement the defendants have admitted the execution of the suit documents but contend that the plaintiff did not come forward to get the sale deed registered within the time bound fixed as per the suit documents. Inspite of repeated approaches made by the defendants, the plaintiff failed to pay the balance sale consideration and get the sale deed registered within three months. Therefore, the suit is barred by time and the

¶43

5 -

¶44

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶45

HC-KAR

¶46

plaintiff is not entitled for the relief of specific performance.

¶47

The Trial Court having considered the averments made in the plaint and in view of the admission of the execution of the suit documents in the written statement, only framed the following Issues:

¶48

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

¶49

Whether the defendants prove that the suit is barred by limitation?

¶50

Whether the plaintiff is entitled for relief/s as claimed in the suit?

¶51

What order or decree?

¶52

The Trial Court allowed the parties to lead their

¶53

evidence. In order to prove the case of the plaintiff, the

¶54

plaintiff examined himself as PW1 and got marked the documents at Ex.P1 to P5. On the other hand, defendant

¶55

6 -

¶56

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶57

HC-KAR

¶58

No.4 examined himself as DW1 and no documents were

¶59

got marked. The Trial Court having considered the material on record comes to the conclusion that the recitals of the document at Ex.P1 is very clear that though time was stipulated for a period of three months, the same is for providing documents to register the sale agreement and till then, the agreement is valid. The Trial Court also taken note of the admission on the part of PW1 which is extracted and also the admission given by DW1 in his cross-examination. DW1 in his cross-examination categorically admitted that within three months, they did not obtain any sketch and also categorically admitted that the plaintiff demanded for the sketch on several occasions and also categorically admitted that in respect of the suit schedule property, they did not get the separate sketch and also categorically admitted that the responsibilities on the defendants to obtain the sketch. Having considered the depositions of PW1 and DW1, the Trial Court comes to the conclusion that the plaintiff was always ready to have

¶60

7 -

¶61

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶62

HC-KAR

¶63

the sale deed since he has made the payment of Rs.95,000/- out of Rs.99,000/- and balance amount will be paid at the time of registration after getting all the property documents. Hence, granted the relief of specific performance since the defendants have admitted the sale agreement.

¶64

Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred in R.A.No.17/2018. The First Appellate Court having considered the grounds urged in the appeal formulated the following Points:

¶65

Whether the Trial Court has erred in holding

¶66

that the suit is within the period of limitation?

¶67

Whether the appellants have established that the sale agreement is unenforceable?

¶68

Whether the judgment and decree of the Trial Court requires interference by this Court?

¶69

What order?

¶70

8 -

¶71

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶72

HC-KAR

¶73

The First Appellate Court reassessed the

¶74

material on record and particularly, taken note of the payment of Rs.95,000/- as earnest money. The First Appellate Court observed that there is no dispute with regard to the execution of the agreement wherein it is mentioned that registered sale deed to be executed within a period of three months after obtaining all the documents. The First Appellate Court also read the document of Ex.P1 and comes to the conclusion that it is an obligation on the part of the defendants to get all the documents to execute the sale deed and time is stipulated to get the documents but they did not get the same within that time. The First Appellate Court also taken note of the admission on the part of DW1 in the cross-examination wherein the admission is clear that responsibilities is on the defendants to get the documents particularly the sketch in respect of the suit schedule property to register the document. The First Appellate Court considering both oral and documentary evidence placed on record,

¶75

9 -

¶76

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶77

HC-KAR

¶78

confirmed the judgment and decree of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, this appeal is filed before this Court.

¶79

This Court having considered the grounds urged at the time of admission, admitted the appeal and framed the following substantive questions of law:

¶80

Whether both the Courts below are justified in not considering the period of limitation as Ex.P1 was executed on 02.06.2007 and suit came to be filed on 05.07.2013?

¶81

Whether the finding recorded by the Courts below regarding ready and willingness on the part of the plaintiff to prove the terms and conditions as stipulated in the sale agreement dated 02.06.2007 is justified or not?

¶82

The learned counsel for the appellants would vehemently contend that it is not in dispute that the sale agreement was executed on 02.06.2007 and also it is not

¶83

10 -

¶84

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶85

HC-KAR

¶86

in dispute that the plaintiff had paid the amount of Rs.95,000/- towards earnest money out of Rs.99,000/and balance amount payable is Rs.4,000/- at the time of registration. The counsel for the appellants would vehemently contend that when the time is mentioned for a period of three months to execute the sale deed, for a period of seven years, no notice was issued and also not paid the balance amount and the legal notice was issued on 18.02.2013 and immediately reply was given stating that not complied with the conditions imposed in the agreement and hence, not entitled for the relief of specific performance inspite of the specific defence was taken in the written statement admitting the execution of the sale agreement and also reply was given, both the Courts have committed an error. The counsel also would vehemently contend that when agreement was entered, possession was not delivered and possession also with the appellants and even though the plaintiff claims that Rs.95,000/- was paid, he kept quiet and filed the suit after lapse of seven

¶87

11 -

¶88

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶89

HC-KAR

¶90

years and the same has not been considered by both the

¶91

Courts.

¶92

Per contra, the learned counsel appearing for the respondents would vehemently contend that the dispute between the parties is very narrow since the agreement is pleaded by the plaintiff and same is admitted by the defendant. If the sale agreement is admitted, the Court has to look into the contents of the sale agreement. The only issue between the parties is with regard to the recitals of the document at Ex.P1. Hence, it is clear that the time is stipulated for a period of three months to get the document and also the recital of document of agreement is clear that balance of Rs.4,000/- is to be payable at the time of registration that the defendants have to furnish all the documents and further recital is very clear that till date, this agreement will be in force. The counsel referring this recital submits that agreement will be in force till furnishing of all the documents. Hence, the question of three months mentioned in the document

¶93

12 -

¶94

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶95

HC-KAR

¶96

is not the essence of the contract to fulfill the condition by the plaintiff and the defendants have to furnish all the documents of the property. The counsel would vehemently contend that there is a clear admission on the part of DW1 that he has to get the sketch and responsibility to get the sketch is on the defendants and till date, they did not obtain the same. The said admission is relied upon by both the Courts and extracted the admission while passing the judgment. Hence, answering substantive questions of law in favour of the appellants does not arise.

¶97

Substantive question of law Nos.1 and 2

¶98

Heard the learned counsel appearing for the respective parties. The first substantive questions of law is with regard to the limitation that Ex.P1 was executed on 02.06.2007 and suit came to be filed on 05.07.2013. No doubt, the suit is filed after seven years. But the Court has to look into the document of Ex.P1 which clearly discloses that out of sale consideration of Rs.99,000/-, Rs.95,000/- was paid by the plaintiff and remaining

¶99

13 -

¶100

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶101

HC-KAR

¶102

amount of Rs.4,000/- shall be payable at the time of registration after obtaining all the documents of the property. Hence, the question of ready on the part of the plaintiff does not arise once he has made the maximum payment of Rs.95,000/- and balance amount is only Rs.4,000/- payable at the time of registration. The second substantive question of law is framed with regard to readiness and willingness on the part of the plaintiff. Regarding readiness and willingness as well as limitation is concerned, the document at Ex.P1 is crucial document wherein the defendants have not disputed regarding execution of agreement as well as payment but only contend that inspite of time was stipulated in the agreement to get the document registered. Hence, this Court has to read the document regarding recital of three months time fixed. It has to be noted that the defendant agreed to receive the balance sale consideration within three months and also execute the sale deed within three months by providing all the documents in respect of the

¶103

14 -

¶104

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶105

HC-KAR

¶106

suit schedule property. The same would be received at the time of registration. It is also important to note that further recital in the agreement is clear that till furnishing of all the documents and receipt of amount of Rs.4,000/-, the agreement will be in force. When such averment is made, the very contention that ought to have obtained the sale deed within three months cannot be accepted.

¶107

It is also important to note that in the crossexamination of DW1, he admits that he did not obtain the sketch as agreed till date and also categorically admitted that he had agreed to execute the sale deed by furnishing all the revenue documents of the suit schedule property but he did not get prepared the survey sketch of the suit schedule property within three months. Further admitted that the plaintiff had approached the defendants on several times seeking to get prepare the survey sketch and other documents of the suit schedule property but they did not furnish the same. Hence, the very recital is very clear that they did not provide the document as

¶108

15 - NC: 2025:KHC:24178 RSA No. 9 of 2021

¶109

HC-KAR

¶110

agreed and this admission also taken note of by both the Courts, hence, the very defence that balance was not paid and the plaintiff did not come forward to have the sale deed does not arise.

¶111

It is also categorical admission that on several occasions, the plaintiff approached him to get the document but they did not do the same. It is clear that the plaintiff was very much always ready and willing to have the sale deed but the defendants failed to get the documents and register the sale deed with the stipulated time. The defendants did not get the documents which requires for registration. Ultimately, the plaintiff had issued the notice and untenable reply was given. The admission on the part of the defendants is contrary to their own reply statement as well as the defence which was taken in the written statement. Thus, the categorical admissions take away the defence of the appellants. Hence, the defendants cannot find fault with the plaintiff in making the balance payment and getting the sale deed

¶112

16 -

¶113

NC: 2025:KHC:24178 RSA No. 9 of 2021

¶114

HC-KAR

¶115

since DW1 has given clear admission which was extracted by both the Courts while considering the matter and so also taken note of evidence of PW1 with regard to the payment made, Hence, very contention that time is essence of contract in terms of the agreement and the plaintiff did not come forward to execute the sale deed cannot be accepted. The very recital of Ex.P1 is clear that the agreement is valid till providing of the documents for registration. Hence, the contention that the suit is barred by limitation cannot be accepted. The readiness and willingness is also proved by the plaintiff before both the Courts in view of the admission on the part of DW1 that he did not come forward to execute the sale deed providing all the documents. Hence, the first substantive question of law is answered as affirmative and the second substantive question of law is answered as affirmative as justified in recording the finding as always ready and willing and defendants only committed breach of contract in nonproviding all the documents.

¶116