Karnataka High Court
Mehaboob S/O. Hussainkhan Pathan vs Noor Ahmed S/O. Bashir Ahmed Kalaigar on 3 January, 2019
Author: P.B.Bajanthri
Bench: P.B.Bajanthri
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY 2019
BEFORE
THE HON'BLE MR.JUSTICE P.B.BAJANTHRI
RSA NO.6106 of 2011 (SP)
BETWEEN
SHRI MEHABOOB S/O.HUSSAINKHAN PATHAN,
AGE: 55 YEARS, OCC: CARPENTER,
R/O. CTS. NO. 1038/A1/C, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
... APPELLANT
(BY SHRI SANGRAM S. KULKARNI, ADVOCATE)
AND
NOOR AHMED S/O.BASHIR AHMED KALAIGAR
SINCE DECEASED BY HIS LRS.
1. HAYATBI W/O. NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O.: H.NO.990, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
2. SHAKEEL NORRAHMED KALAIGAR,
AGE: MAJOR, OCC: CARPENTER,
R/O. H.NO. 990, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
3. SAIYERA W/O. ALISAB SHAIKH,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. NAGZARA, PONDA.
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4. RAFIQ NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: CARPENTER,
R/O. H.NO. 1038, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
5. YASMEEN W/O. ZAKIR MULLA,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. 3RD LANE, NEW GANDHI NAGAR,
BELGAUM, BELGAUM 590 001.
6. NAFISA W/O. MUSHTAQ MULLA,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. TORI GALLI, HUBLI-580 008
7. NAUSHAD NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: RIKSHAW DRIVER,
R/O. H.NO. 990, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
8. SAMEER NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: CLEANER
R/O. 1038, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
9. BASHIROON W/O.KHALID CHANDWALE,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. RAMTURI GALLI, AZARA.
10. AMREEN NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. H.NO. 1038, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
11. MOHSIN NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: CARPENTER,
R/O.: H.NO. 1038, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
12. BIBI AYESHA D/O.NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: CLEANER
R/O.: H.NO. 1038, KALAIGAR GALLI,
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BELGAUM, BELGAUM 590 001.
13. MUNEERA D/O.NOORAHMED KALAIGAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. H.NO. 1038, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
14. AFZAL S/O. MOHAMMADGOUS KALAIGAR,
AGE: 60 YEARS, OCC: CARPENTOR,
R/O.: H.NO. 1038/A1-C, KALAIGAR GALLI,
BELGAUM, BELGAUM 590 001.
15. MAINODDIN AMIRSAHEB SHAIKH
AGE: 38 YEARS, OCC: BUSINESS,
R/O.: CTS NO. 1038/A1-C, KALAIGAR,
BELGAUM, BELGAUM 590 001.
16. MOHAMMADGOUS FAKRUSAHEB MUJAWAR,
AGE: 40 YEARS, OCC: BUSINESS,
R/O. CTS NO. 1038/A1-C, KALAIGAR,
BELGAUM, BELGAUM 590 001.
... RESPONDENTS
(BY SHRI SACHIN S.MAGADUM, ADV. FOR R1, R2 & R4 TO R14;
R3, R15 AND R16 ARE SERVED)
THIS RSA IS FILED UNDER ORDER 43 RULE 1(U) READ
WITH SECTION 100 OF C.P.C., AGAINST THE JUDGEMENT &
DECREE DATED 15.09.2011 PASSED IN R.A.N0.448 OF 2009 ON
THE FILE OF THE PRESIDING OFFICER, IV-FAST TRACK COURT,
BELGAUM, PARTLY ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 19.01.2006 AND THE DECREE PASSED IN
O.S.NO.4 OF 2003 ON THE FILE OF THE III-ADDITIONAL CIVIL
JUDGE (JR.DN.), BELGAUM, DECREEING THE SUIT FILED FOR
SPECIFIC PERFORMANCE OF CONTRACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Though the matter is listed for admission, with the consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.
2. In the present appeal, the appellant has questioned the validity of the judgment passed in R.A.No.448 of 2009, dated 15th September 2011, on the file of the IV-Fast Track Court, Belgaum.
3. Brief facts of the case are that the appellant- plaintiff entered into an agreement of sale of property with the defendant No.1 - deceased Noor Ahmed S/o.Bashir Ahmed Kalaigar in respect of the portion of CTS No.1038/1A-C situated at Kalaigar Galli, Belgaum, measuring East-West - 8'.6" North-South - 13'.9" in length having an area of 116.87 sq.ft. The deceased defendant No.1 is said to have availed loan from the Maratha Co-op. Bank Limited in order to meet the default in the payment of loan of the Bank, the deceased Noor Ahamed entered into an agreement of sale with the appellant-plaintiff. In other :5: words, the sale agreement is only with reference to the security and not with an intention to sell the property. In terms of the sale agreement, the appellant-plaintiff has shown is readiness for execution of the sale agreement, for which defendant No.1 - the deceased Noor Ahmed has not complied with the terms and conditions stated in the sale agreement. Thus, the appellant has filed a suit for specific performance and the said suit was decreed on 19th January 2006. Feeling aggrieved by the decree passed in O.S.No.4 of 2003, the L.Rs. of the deceased Noor Ahamed preferred an appeal before the Court of the IV-Fast Track Court, Belgaum, which was numbered as R.A.No.448 of 2009. In the said regular appeal, the decree was reversed while rejecting the relief of the appellant-plaintiff, which was filed for specific performance and directed that the plaintiff is entitled to recover the earnest money of Rs.13,000/- from the defendants with interest at the rate of 18% p.a. from the date of the agreement till its realization and also damages of Rs.25,000/-.
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4. Learned counsel for the appellant submits that while deciding R.A.No.448 of 2009, the Court below has committed an error since weightage has not been given to Ex.P2. Whereas Ex.P2 is relating to an agreement of sale, nowhere in the agreement it is stated that the agreement is a measure of security and in order to clear the loan availed by the then deceased defendant - Noor Ahamed from Maratha Co.op. Bank Limited, Belgaum. Learned counsel for the appellant pointed out from paragraph Nos.27 to 29 that the Court below has erred in not appreciating the factual aspects read with the documents, which has gone only with the imagination to the extent that as per Section 22 of the Specific Relief Act, specific performance is discretionary but not arbitrary. Therefore, the Court below has erred in reversing the decree passed in the suit. Hence, the Judgment in R.A.No.448 of 2009 is liable to be set aside.
5. Per contra, the learned counsel for the respondents while resisting the contention of the learned counsel for the appellant contended that the deceased - :7: Noor Ahamed - defendant had entered into an agreement of sale with the appellant only in order to meet the financial crises, as is evident from the fact that he had availed loan from the Maratha Co.op. Bank Limited. Therefore, rightly R.A.No.448 of 2009 was allowed while reversing the decree passed in the Suit. It was further contended that the matter was considered by Panchayat also to the extent that the deceased Noor Ahmed intends to give away the property to his son. That apart, in R.A.No.448 of 2009, the Court below considered the provisions of Section 22 of the Specific Relief Act. Thus, the appellant has not made out a case for interference.
6. Heard the learned counsel for the parties.
7. The crux of the matter in the present appeal is whether reversal of the decree passed in the Suit O.S.No.4 of 2003 is in accordance with law or not?
8. The undisputed facts are that the appellant and the defendant - deceased Noor Ahamed were entered into :8: an agreement of sale in respect of the suit property stated supra. In the sale agreement, nowhere it is mentioned that such agreement is executed as a measure of security. In the absence of specific wordings in the sale agreement to the extent that such sale agreement is only with reference to security measure, one cannot draw inference that such sale agreement is only with reference to security. The Court below while deciding R.A.No.448 of 2009, has not apprised Ex.P2-sale agreement, wherein it is crystal clear of sale of agreement. The appellant has shown is readiness and willingness to execute the sale agreement as and when it is due, at the same time, the defendant - deceased - Noor Ahmed has not shown his interest to execute the sale agreement on one or the other pretext including intends to give it to his son etc., Merely taking note of Section 22 of the Specific Relief Act, one cannot draw inference that it is discretionary in respect of extending the relief of specific performance under the Specific Relief Act. Ex.P2 cannot be ignored while applying Section 22 of the Specific Relief Act. :9: Thus, the Court below has erred while taking note of Section 22 of the Specific Relief Act in denying the specific performance in the matter without appreciating the contents of Ex.P2 - sale agreement. Accordingly, R.A.No.448 of 2009 stands dismissed while affirming the decree passed in O.S.No.4 of 2003, dated 19th January 2006.
Regular Second Appeal stands allowed to the above extent.
SD JUDGE Vnp*