Tajamul Ahmed Vs Sri Mahadevu

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.09.2021 PASSED IN RA.NO.357/2020 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, PARTLY ALLOWING THE APPEAL, AND MODIFYING JUDGMENT AND DECREE DATED 14.10.2020 PASSED IN OS.NO.688/2016 ON THE FILE OF THE V ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MYSURU.

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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 appellant, challenging the judgment and decree dated 18.9.2021 passed in R.A.No.357/2020 by the learned IV Additional District and Sessions Judge, Mysuru, and the judgment and decree dated 14.10.2020 passed in O.S.No.688/2016

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by the learned V Addl. Senior Civil Judge and JMFC, Mysuru.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was

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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 specific performance of a contract. It is the case of the plaintiff that, the defendants are the owners of the suit schedule property and agreed to sell the same for a consideration of Rs.7,40,000/- and executed a registered sale agreement by receiving Rs.2,00,000/- as an advance sale consideration in the presence of the witnesses. The defendants agreed to execute the registered sale deed within six months from the date of sale agreement by obtaining necessary documents pertaining to the suit schedule property and also contended that on 5.3.2013, the defendants approached, and received an additional

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consideration amount of Rs.1,00,000/-, for which they have executed a receipt. Despite the request made by the plaintiff, the defendants did not hand over the documents to execute the registered sale deed and postponed the same for one or the other reason. It is contended that, the plaintiff was/is always ready and willing to perform his part of the contract. The plaintiff got issued a legal notice through the counsel on 5.7.2016, calling upon the defendants to perform their part of the contract, as they have failed to perform their part of the contract. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract. Accordingly, prays to decree the suit.

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3.1. Summons were issued to defendants No.1 and

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Despite service of summons, defendants No.1 and 2 remained unrepresented, and they were placed exparte. Defendants No.3 to 5 filed a written statement contending that item no.2 is the joint family property, and that they never executed a sale agreement as alleged by the

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plaintiff. The plaintiff had forcibly obtained signatures on the documents, and it is contended that the plaintiff never approached them and he has not expressed his readiness and willingness to perform his part of the contract. Hence, there is no cause of action for the plaintiff to file a suit for specific performance of a contract. Accordingly, prays to dismiss the suit.

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

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3.3. The plaintiff, to substantiate his case, examined himself as PW.1 and marked 17 documents as exhibits P.1 to P.17. On the other hand, the defendants to prove the defence, defendant no.4 was examined as DW.1, and marked 5 documents as exhibits D.1 to D.5. The trial Court, on the assessing of verbal and documentary evidence, dismissed the suit with cost, vide judgment dated 14.10.2020. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.688/16, preferred

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an appeal in R.A.No.357/2020 on the file of learned IV Additional District and Sessions Judge, Mysore.

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3.4. The Appellate Court, on re-assessing the verbal and documentary evidence, allowed the appeal in part by modifying the judgment and decree dated 14.10.2020 passed by the trial court in O.S.No.688/2016, and directed the defendants to refund the entire advance amount with interest at the rate of 9% p.a. for Rs.2,00,000/- from 18.08.2012 and for Rs.3,00,000/- from 5.3.2013 till the date of realisation.

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3.5. 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 plaintiff.

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Learned counsel for the plaintiff submits that, the defendants have not taken the defense regarding the limitation, and no issue was framed on the question of limitation. The trial court committed an error in dismissing

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the plaintiff’s suit on the ground that, the suit is barred by limitation. He submits that the defendants have not denied the execution of a registered sale agreement when the legal notice was issued. He submits that, a legal notice was issued and the defendants did not reply to the legal notice. Hence, a cause of action arose after the service of legal notice on the defendants. He submits that the suit filed by the plaintiff falls under part II, Article 54 of the Limitation Act, 1963. Hence, the suit filed by the plaintiff is well within time. Hence, prays to allow the appeal.

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

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The plaintiff to substantiate his case, examined himself as PW.1. He reiterated the plaint averments in the examination-in-chief, and to prove that, the defendants agreed to sell the suit schedule property for a consideration of Rs.7,40,000/- and the plaintiff paid a sum of Rs.2,00,000/- as on the date of execution of sale

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agreement and after receiving the advance sale consideration amount, the defendants executed a sale agreement dated 18.8.2012 produced the sale agreement and the said sale agreement is marked as Ex.P.1, Ex.P.2 is the advance paid receipt, Ex.P.3 is the copy of the legal notice issued by the plaintiff to the defendants calling upon the defendants to receive the balance sale consideration amount and execute a registered sale deed, Ex.P.4 to Ex.P.8 are the postal receipts, Ex.P.9 to Ex.P.11 are the postal acknowledgements, Exs.P.12 and P.13 are the postal covers, Exs.P.12(a) and Exs.P.13(a) are the notices, Exs.P.14 to P.16 are the RTC extracts and Ex.P.17 is the MR extract. The agreement of sale executed by the defendants in favour of the plaintiff is a registered sale agreement.

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In rebuttal, defendant no.4 was examined as DW.1. He reiterated the written statement averments in his examination-in-chief. To prove their defense,

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defendants have produced Ex.D.1, the certified copy of the

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partition deed dt.18.3.2013, which discloses that partition was effected among the defendants. Ex.D.2 is the certified copy of Form No.15, Exs.D.3 to D.5 are the Aadhar cards. During the course of cross examination, DW.1 admitted that, they have executed the registered sale agreement as per Ex.P.1 and also admitted that he had affixed his signature on all the pages of Ex.P.1. DW.1 has admitted the execution of the registered sale agreement. As per Section 58 of the Indian Evidence Act, 1872, fact admitted need not be proved. In view of the admission of DW.1, the plaintiff has proved the execution of Ex.P.1 by the defendants in his favour. I have perused the recitals of Ex.P.1 which discloses that it was agreed that the defendants shall receive the balance sale consideration amount, and execute the sale deed and the time was fixed for the performance of the contract i.e., 6 months from 18.8.2012.

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The plaintiff, to prove that he was/is always ready

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and willing to perform his part of the contract, has

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produced a copy of the legal notice marked as Ex.P.3. The said legal notice was issued on 5.7.2016 wherein the sale agreement was executed on 18.8.2012. The plaintiff has not shown sufficient cause for not performing his part of contract from 18.8.2012 till 5.7.2016. The plaintiff has failed to prove that was/is always ready and willing to perform his part of the contract. Thus, the plaintiff has filed a suit for specific performance of a contract after three years, 8 months, 26 days. As per Article 54 of the Limitation Act, 1963, limitation period for a suit for specific performance is 3 years, starting from the date fixed for performance or if no date is fixed, from the date, the plaintiff has notice that the performance is refused. Admittedly, in the instant case, time was fixed for performing the contract. That agreement was executed on 18.8.2012. The plaintiff should have performed his part of contract on or before 17.2.2013. Admittedly, time was the essence of the contract, wherein the suit was filed on 31.8.2016. Hence, the suit filed by the plaintiff is barred by limitation. Thus, the plaintiff has failed to establish

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that he was/is always ready and willing to perform his part of the contract. The trial Court dismissed the suit, holding that the plaintiff has failed to establish that he was/is ready and willing to perform his part of the contract. The Appellate Court, on re-appreciation of the entire material on record, allowed the appeal in part, and granted the alternative relief of refund of earnest money with interest.

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As observed above, the plaintiff has failed to establish that he was/is always ready and willing to perform his part of the contract. The plaintiff failed to prove requirement of section 16(c) of the Specific Relief Act. Both the courts below have concurrently recorded a finding of facts against the plaintiff. I do not find any error in the impugned judgments or any substantial question of law that arises for my consideration in this appeal.

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