Sri. Laxman Shriyan Vs Sri. Sanjeeva Alias Shivappa Gowda

SRI. SANJEEVA ALIAS SHIVAPPA GOWDA S/O LATE LINGAPPA GOWDA, AGED ABOUT 67 YEARS R/AT KINDELU KEREBAIL HOUSE, BADAYAYEDAPADAVU VILLAGE, MANGALURU TALUK-574 267

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…RESPONDENT

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(BY SRI. ARUN K.S., ADVOCATE)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.08.2015 PASSED IN OS.NO.10/2013 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MANGALORE, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE.

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

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CORAM: HON'BLE MR. JUSTICE D K SINGH

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and

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HON'BLE MR. JUSTICE T.M.NADAF

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NC: 2026:KHC:12911-DB RFA No. 1582 of 2015

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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This Regular First Appeal is filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") being aggrieved by the judgment and decree dated 14.08.2015 passed by the Principal Senior Civil Judge and CJM at Mangalore in OS No.10/2013.

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The appellants are the plaintiffs. The plaintiffs filed the suit for specific performance of the agreement for sale dated 22.11.2011. The total sale consideration for the suit schedule property was agreed to at ₹30,80,000/-, out of which only ₹1,50,000/- by way of cheque was given as advance at the time of agreement to sell.

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Exhibit P.1 is the agreement of sale. It was agreed between the parties that the defendant would execute the sale deed in favour of the plaintiffs of the schedule property for Rs.11,000/- per cent . Rs.1,50,000/- was given by cheque which was encashed by the vendor of the

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defendant. The time fixed for performance of the agreement and execution of the sale deed was three months. There were several other conditions in the agreement for sale (Exhibit P.1).

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Even after three months, as the plaintiffs did not come forward for making payment of balance sale consideration, the defendant, vide legal notice dated 21.11.2012 (Ex.P.4), cancelled Exhibit P.1-agreement for sale. The defendant replied to the said notice dated 19.12.2012 (Ex.P.5). Thereafter, the suit came to be filed by the plaintiffs.

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On the basis of the pleadings, the trial Court framed the following issues :

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1) Whether plaintiffs are always ready and willing to perform their part of contract ?

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2) Whether defendant proves that due to default made by the plaintiffs, he failed to purchase 10 cents land in Sy.No.164/5P6 of Badagayedapadavu Village as asserted in para 9 of the written statement?

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3) Whether defendant proves that the termination of the suit agreement of sale and forfeiture of Rs.1,50,000/- are legal and valid?

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4) Whether plaintiffs are entitled for the relief of specific performance of the suit agreement of sale ?

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5) What Order or Decree ?

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The learned trial Court having considered the evidence of the parties, came to the conclusion that the plaintiffs

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were not ready and willing to perform their part of the agreement inasmuch as they were required to pay a sum of Rs.29,50,000/- within a period of three months from the date of agreement. The plaintiffs failed to bring on record the evidence that they were having the money to perform their part of the agreement within the period of three months. As the plaintiffs were not in a position to perform their part of the agreement, therefore, the trial Court held that they were neither ready nor willing to perform their part of the agreement. It has been further held that as per Section 47 of the Specific Relief Act, 1963, in the agreement of sale if time limit is prescribed by one or the

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other party and the parties do not take the steps for a considerable time, the performance of agreement of sale cannot be granted. In the present case, the plaintiffs have not taken any steps even after two-and-half years from the date of the agreement. In the meantime, the prices of

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the properties have substantially gone up. Therefore, considering the fact that the plaintiffs were not ready and willing to perform their part of the contract, the relief of the specific performance had been dismissed.

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We have considered the impugned judgment and heard both the learned counsel for the plaintiffs and the learned counsel for the defendant.

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It is not in dispute that the time period prescribed under Exhibit P.1- agreement was three months for performance of the agreement to sell dated 22.11.2011. The plaintiffs did not take any steps showing their readiness and willingness to perform their part of the agreement or calling upon the defendants to come forward and perform

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their part of the agreement. In fact, it is the defendant who had issued notice to the plaintiffs in Exhibit P.4 dated 21.11.2012 after more than a year from the date of agreement cancelling the agreement, to which the plaintiffs have replied only on 19.12.2012. There is nothing on record inasmuch as no evidence was brought by the plaintiffs to show that, they had in their possession the balance sale consideration of ₹28,30,000/- to perform their part of the agreement. In fact, a cheque issued by them in favour of the defendant for ₹50,000/- also got bounced. The learned trial Court has not accepted the stand of the plaintiffs that after the cheque got bounced, they had paid ₹50,000/- in cash to the defendants. Once the plaintiffs could not prove their financial capability to perform their part of the agreement, this means that they were not ready to perform their part of the agreement itself. In a suit for specific performance, plaintiff is required to prove three facts :

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i) existence of valid agreement of sale;

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ii) the plaintiff's readiness and willingness to perform their part of the agreement;

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iii) the defendant's default/failure to perform part of the agreement.

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The petitioners miserably failed to prove the second aspect in the suit inasmuch as no evidence was brought by them to substantiate that they had Rs.29,30,000/- money ready with them to perform their part of the agreement within three months. Even after three months, when the plaintiffs did not pay the balance sale consideration, the defendant issued notice on 22.11.2012 cancelling the agreement of sale. We therefore, find no error in the impugned judgment and decree passed by the trial Court.

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For the aforesaid reasons, we dismiss this appeal. However, considering the fact that the plaintiffs have advanced ₹1,50,000/- to the defendant, we direct the defendant to pay ₹1,50,000/plus 10% interest compounded annually from the date of the agreement dated 22.11.2011, till date of payment.

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