Karnataka High Court
Sri Inas Lobo vs Smt Leelavathi @ Appi on 27 February, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1330 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1330 OF 2021 (SP)
BETWEEN:
1. SRI. INAS LOBO
S/O. SIMON LOBO
AGED ABOUT 66 YEARS
R/AT SURULI HOUSE
LAILA VILLAGE
BELTHANGADY TALUK
DAKSHINA KANNADA-574 214.
...APPELLANT
(BY SRI. NAGARAJA K.R., ADVOCATE FOR
SRI. VISWANATHA SETTY V., ADVOCATE)
AND:
1. SMT. LEELAVATHI @ APPI
W/O. LATE SRINIVASA @ MONTA ACHARY
Digitally signed
by SHARANYA T AGED ABOUT 81 YEARS
Location: HIGH
COURT OF 2. SMT. PUSHPA
KARNATAKA
D/O. LATE SRINIVASA @ MONTA ACHARY
AGED ABOUT 56 YEARS
3. SMT. SUJATHA
D/O. LATE SRINIVASA @ MONTA ACHARY
AGED ABOUT 54 YEARS
4. SMT. KUMARI
D/O. LATE SRINIVASA @ MONTA ACHARY
AGED ABOUT 51 YEARS
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RSA No. 1330 of 2021
5. SRI RATHNAKARA
S/O. LATE SRINIVASA @ MONTA ACHARY
AGED ABOUT 39 YEARS
6. SMT. SARASWATHI
D/O. LATE SRINIVASA @ MONTA ACHARY
AGED ABOUT 30 YEARS
7. SMT. PREMALATHA
W/O. LATE KAMALAKSHA
AGED ABOUT 48 YEARS
8. SRI. HARISH
S/O. LATE KAMALAKSHA
AGED ABOUT 27 YEARS
9. SMT. ASHA
D/O. LATE KAMALAKSHA
AGED ABOUT 25 YEARS
10. ANUSHA
D/O. LATE KAMALAKSHA
AGED ABOUT 22 YEARS
RESPONDENT NOS.7 TO 10 ARE
R/AT NANNIKALLU HOUSE
LAILA VILLAGE
BELTHANGADY TALUK-574 214.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 27.11.2019
PASSED IN R.A.NO.25/2018 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY, D.K,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.07.2018 PASSED IN O.S.NO.182/2012
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
BELTHANGADY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1330 of 2021
JUDGMENT
This matter is listed for admission. I have heard the learned counsel for the appellant-plaintiff.
2. The factual matrix of the case of the appellant- plaintiff before the Trial Court is that, property bearing Sy.No.116/2AP2 measuring 0.50 acres situated at Laila Village, Belthangady Taluk, D.K. District belongs to the defendants as legal heirs of late Srinivasa @ Monta Acharya. The suit schedule property along with other properties were granted in his favour under LRY 5/1976-77 of Belthangady Land Tribunal, after his death, same properties were inherited by the defendants and one of his sons namely Kamalaksha was dead, the defendant Nos.7 to 10 being wife and children of him respectively are having undivided right over the suit schedule property. In order to protect other lands of the defendants being sold in public auction by Belthangady Primary Co- operative Agricultural and Rural Development Bank for recovery of outstanding loan, the defendants were in urgent need of funds in the month of September, 2009, hence offered to sell the same to plaintiff for a fair consideration. The plaintiff being a neighbour of defendants and also in need of agricultural land -4- RSA No. 1330 of 2021 accepted the offer of the defendants. The suit schedule land situates in a remote place of Laila Village and after mutual discussion, both plaintiff and defendants concluded to Rs.2,00,000/- and the same was reduced into an agreement of sale on 22.09.2009 and all the defendants signed the sale agreement, after the payment of Rs.20,000/- to the aforesaid bank by the plaintiff on behalf of the defendants as part consideration of suit land. The first defendant being kartha and manager of the family of defendants undertaken to convey the suit schedule property along with others within three months from the date of sale agreement and also undertaken to procure all the documents required for registration of sale deed. It is also the case of the plaintiff that the defendants took Rs.32,800/- from the plaintiff as part consideration and a receipt for the same was executed by the defendant Nos.1 and 2 on 13.08.2010. Further, in the month of July, 2011, the defendant Nos.1 and 5 received Rs.36,200/- from the plaintiff for which, though the defendants agreed to execute a receipt but resiled thereafter. So far, the defendants have received total amount of Rs.89,000/- in all from the plaintiff towards part consideration of the suit schedule land and agreed to pay -5- RSA No. 1330 of 2021 the balance consideration of Rs.1,11,000/- at the time of execution of sale deed. The plaintiff was ready and willing to get the sale deed executed and registered in respect of suit land on the date of sale agreement but, the defendants were not ready with required documents for registration of sale deed. The defendants have not made any effort to procure the documents required for registration nor responded to the plaintiff's enquiry. Even though notices seeking execution of sale deed were delivered to the defendant Nos.1 and 5 on 27.07.2010 and 15.09.2011, the same were not responded by the defendants. Hence, without any other alternative, the plaintiff has filed the suit.
3. In pursuance of the suit summons, the defendant No.6 did not appear before the Court and others have appeared before the Court. As a result, the defendant No.6 was placed exparte. The defendant Nos.1 and 5 have filed the written statement denying the plaint averments with regard to the title as well as entering into an agreement of sale. It is contended that the defendants availed hand loan of Rs.20,000/- from the plaintiff, who is known to these defendants as he was doing money lending business in the village. The said entire hand -6- RSA No. 1330 of 2021 loan amount was paid directly to different loan accounts of late Srinivasa Acharya by the plaintiff himself on behalf of these defendants by coming along with the defendant No.5 to the said bank. After payment of the said amount, still0 about more than Rs.1,50,000/- is outstanding to the said bank on the charge of the properties which belongs to the defendants. At the time of giving the amount, the plaintiff asked the defendants to execute the loan documents for security of the hand loan of Rs.20,000/- availed by these defendants. At the time of availing the hand loan, the defendant Nos.1 and 5 had put their signatures on some papers and rest of the defendants were not present and they are not parties to the said transaction. It is contended that defendants are not educated and not able to understand the contents of the documents executed by them and they were under the impression and believing the words of the plaintiff and his advocate that they executed the loan documents for the hand loan availed by them from the plaintiff. It is also contended that the defendants regularly paid the exorbitant interest of Rs.4,000/- every year, for the last three years and in total, they paid Rs.12,000/- to the plaintiff, apart from payment of Rs.10,000/- out of the -7- RSA No. 1330 of 2021 principle amount borrowed and they requested some more time to repay the amount borrowed, since the agricultural income was not sufficient to repay. The plaintiff with malafide intention, to make unlawful gain misused the loan documents. Hence, the Trial Court framed the issues, whether the sale agreement was executed on 22.09.2009 and on execution, out of the sale consideration, an amount of Rs.20,000/- was received as earnest money. It is also the case of the plaintiff that the defendants received the amount of Rs.32,800/- on 13.08.2010 and Rs.36,200/- in the month of July, 2011 towards balance sale consideration. The Trial Court also framed the issue with regard to the said aspect whether the plaintiff was ready and willing to perform his part of contract and is entitled for the relief of partition. The Trial Court also framed additional issue with regard to the defence which were taken by the defendant Nos.1 and 5 that they have obtained signature on the document as a security for the hand loan.
4. The Trial Court, after considering both oral and documentary evidence placed on record, answered issue No.1 as 'partly affirmative', in coming to the conclusion that there was a sale agreement between the parties on 22.09.2009 and -8- RSA No. 1330 of 2021 answered issue No.2 also as 'partly affirmative' that they have received amount of Rs.32,800/- but, not Rs.36,200/- and also comes to the conclusion that the plaintiff was ready and willing to perform his part of contract but, declined to grant any order for specific performance.
5. Being aggrieved by the judgment and decree of the Trial Court ordering only for refund of earnest money, an appeal is filed before the First Appellate Court in R.A.No.25/2018 and the First Appellate Court also, on re- appreciation of both oral and documentary evidence placed on record, taken note of the material available on record in Para Nos.19 and 20 and discussed in detail regarding execution of documents Exs.P1 and P2 and also comes to the conclusion that only an amount of Rs.52,800/- was paid and not more than that as contended by the plaintiff and dismissed the appeal. Hence, the present appeal is filed before this Court.
6. Learned counsel appearing for the appellant-plaintiff would vehemently contend that both the Courts committed an error in not granting the relief of specific performance, instead committed an error in ordering for refund of advance amount of -9- RSA No. 1330 of 2021 Rs.52,800/-. The counsel also would vehemently contend that payment of Rs.36,200/- was also made and the same was taken note of and both the Courts committed an error in not considering the document at Ex.P2 i.e., agreement of sale entered into between the parties and not the loan agreement. It is also contended that both the Courts committed an error in not considering the fact that respondent Nos.1 and 5 have contended that, it is only a loan transaction between the appellant and respondents and completely failed to prove the additional issue No.1 and the very approach of both the Courts is erroneous. The counsel also would contend that both the Courts committed an error in coming to the conclusion that Ex.P2 is only a loan agreement and not a agreement of sale while answering issue No.1 as 'partly affirmative', accepting the payments made by the appellant and also while answering additional issue as 'negative',. Hence, it requires interference of this Court.
7. Having heard the respective counsel and also on perusal of the material available on record, the document of Ex.P2 is the sale agreement dated 22.09.2009. It is also the case of the defendants that they have received an amount of
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RSA No. 1330 of 2021Rs.20,000/- on 22.09.2009 towards the loan transaction and not towards the sale consideration. It is also important to note that the sale consideration in terms of Ex.P2 is Rs.2,00,000/- but, payment made is only Rs.20,000/- and subsequently, an amount of Rs.32,800/- is also received. It is the contention of the plaintiff that he has also made the payment of Rs.36,200/- but, in order to substantiate the very contention that he has paid the additional amount of Rs.36,200/- in the month of July, 2011 towards balance consideration, no material is placed before the Court. Both the Courts have taken note of the said fact into consideration and though answered issue No.1 as 'partly affirmative', taking note of the material on record, comes to the conclusion that the plaintiff is not entitled for the relief of specific performance.
8. Admittedly, the time stipulated to convey the property is three months but, payment was made subsequent to the period of three months after the sale agreement and taking note of all these factors into consideration, both the Courts comes to the conclusion that it is not a case for granting the relief of specific performance and both the Courts have given anxious consideration to the evidence available on
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RSA No. 1330 of 2021record, more particularly, the answers elicited from the mouth of plaintiff-P.W.1 and also, in detail discussed in Para No.30 with regard to the pleadings of the parties and also taken note of the contents of the document of Ex.P2 and in Para No.36, finding is given for having made the payment of Rs.52,800/- and not Rs.89,000/- as claimed by the plaintiff and also taken note of the admission given by P.W.1 in Para No.37 that all the parties have not signed the document and reasoning was also given in Para No.38 that, if really the plaintiff was intending to purchase the suit schedule property, he must be more vigilant than defendants and he had to take all possible care before purchasing the property by enquiring about the right, title and interest.
9. The Trial Court also taken note of the fact that though in Ex.P2, the names of defendant Nos.1 to 6 are typed, the names of defendant Nos.7 to 10 are handwritten and in Ex.D1, signatures of defendant Nos.2 to 4, 6 and 7 have not been obtained by preferring two sets of documents and also taken note of all the material on record, including the defence of P.Ws.2 and 3, who are the attesting witnesses to Ex.P2 and Ex.D1. Hence, comes to the conclusion that the plaintiff is not
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RSA No. 1330 of 2021entitled for the relief of specific performance. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, in Para Nos.19 and 20 taken note of the documents Exs.P1 to P8 and also taken note of evidence of P.W.1, wherein he has stated in the cross- examination that the defendant No.5 has received Rs.20,000/- towards discharge of loan due by their father and the First Appellate Court also, taken note of the fact that defendants have received Rs.1,20,000/- and the fact that the plaintiff is having document to show the same and there is no impediment to produce the same before the Court but, no document is produced before the Court. It is also the case of the plaintiff that, so far as, the defendants have taken a sum of Rs.89,000/- and the said evidence is contrary to the case of the plaintiff. Ex.D1 is the similar copy of Ex.P2-sale agreement which was confronted to the plaintiff and he has admitted his signature which is marked as Ex.P1(a) which appears to be signed by defendant Nos.1 and 5. P.W.1 also categorically admitted that all the parties mentioned in Ex.P1 are not made as parties and on perusal of Ex.P2 and Ex.D1, the contents of the documents are same but, the parties are not similar. These
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RSA No. 1330 of 2021are all the aspects which have been taken note by the First Appellate Court also and comes to the conclusion that the plaintiff has not made out the case for specific performance. Having considered both the judgments of the Trial Court as well as the First Appellate Court, both the Courts have given anxious consideration to the material on record. When such being the case, even though there is no alternative prayer is made in the suit, the Trial Court has ordered for refund of amount of Rs.52,800/- and the same is affirmed by the First Appellate Court. Hence, I do not find any grounds to admit the appeal invoking Section 100 of C.P.C. and frame any substantial question of law.
10. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE ST List No.: 1 Sl No.: 40