Karnataka High Court
Anilkumar Chandulal Daptardar vs Basavantappa Krishnappa Jagadale ... on 29 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:4773
RSA No. 1554 of 2007
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 1554 OF 2007 (SP)
BETWEEN:
1. ANILKUMAR CHANDULAL DAPTARDAR,
AGE :MAJOR, OCC: GOVT SERVICE,
R/O SANKESHWAR, HUKERI
SINCE DEAD BY LRS
1A) SMT. ANURADHA, W/O. ANIL KUMAR DAPTADAR,
AGE:54 YEARS, OCC: HOUSEHOLD WORK,
R/O: MATH GALLI, SANKESHWAR-591313,
TAL: HUKKERI, DIST: BELGAUM.
1B) SMT. GOURI W/O. ABHIJIT KULKARNI,
AGE: 24 YEARS, OCC:SERVICE,
MATH GALLI, SANKESHWAR - 591 313,
TAL: HUKERI, DIST :BELGAUM.
Digitally signed by
ASHPAK
KASHIMSA
MALAGALADINNI
ASHPAK Location: HIGH
KASHIMSA COURT OF
MALAGALADINNI KARNATAKA
DHARWAD
BENCH
Date: 2024.07.23
1C) MISS. REVATI D/O. ANILKUMAR DAPTARDAR,
13:02:27 +0530
AGE:22 YEARS, OCC:SERVICE,
R/O: MATH GALLI, SANKESHWAR -591 313,
TAL: HUKERI, DIST: BELGAUM.
2. GOVINDAPPA S/O. KADAPPA JAGADALE,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: SHINDIKURBET-591 307,
TAL: GOKAK, DIST: BELGAUM.
KADAPPA KRISHNAPPA JAGADALE,
AGE:MAJOR, OCC:AGRICULTURE
SINCE DECEASED BY HIS LRS.,
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NC: 2024:KHC-D:4773
RSA No. 1554 of 2007
3. SMT. HOUSAVVA W/O. KADAPPA JAGADALE,
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
SINCE DECEASED BY HER LRS WHO
ARE ALREADY ON RECORD AS APPELLANTS NO. 4 TO 6
4. NARAYAN S/O. KADAPPA JAGADALE,
AGE: 50 YEARS, OCC: AGRICULTURE,
5. SHIVAJI S/O. KADAPPA JAGADALE,
AGE: 38 YEARS, OCC:AGRICULTURE,
6. SHANKAR S/O. KADAPPA JAGADALE,
AGE: 35 YEARS, OCC: AGRICULTURE,
NOS. 3 TO 6 ARE ALL R/O. SHINDIKURBET - 5913107,
TAL: GOKAK, DIST: BELGAUM.
...APPELLANTS
(BY SRI RAVI S. BALIKAI, ADVOCATE)
AND:
1. BASAVANTAPPA KRISHNAPPA JAGADALE,
SINCE DECEASED BY HIS LRS
SMT. JANABAI W/O. BASAVANTAPPA JAGADALE,
AGE:67 YEARS, OCC:HOUSEHOLD WORK,
R/O: SHINDIKURBET-591 307,
TAL: GOKAK, DIST: BELGAUM.
SINCE DECEASED BY HER LRS, WHO ARE ALREADY
ON RECORD AS RESPONDENT NO.2 TO R5)
2. JOTIBA BASAVANTAPPA JAGADALE,
AGE: 46 YEARS, OCC:AGRICULTURE,
R/O: SHINDIKURBET - 591 307,
TA: GOKAK, DIST: BELGAUM.
(DECEASED)
3. SMT. CHANDRABAI W/O. GANAPATI WARE,
AGE: 40 YEARS, OCC:HOUSEHOLD WORK,
R/O: KUCHANUR -587301,
TAL: JAMKHANDI, DIST: BAGALKOT.
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NC: 2024:KHC-D:4773
RSA No. 1554 of 2007
4. BALAKRISHNA BASAVANTAPPA JAGADALE,
AGE: MAJOR, OCC: AGRICULTURE,
REST:SHINDIKURBET-591 307
TAL: GOKAK, DIST: BELGAUM.
5. TUKARAM BASAVANTAPPA JAGADALE,
AGE: MAJOR, OCC: AGRICULTURE,
R/O SHINDIKURBET - 591 .07,
TAL: GOKAK, DIST: BELGAUM
SINCE DECEASED BY HER LRS, WHO
ARE ALREADY ON RECOED AS RESPONDENTS NO. 2 TO 4
6. SMT. SHANTAWWA. W/O. JOTIBA JAGADALE,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: SHINDIKURBET, TAL: GOKAK, DIST: BELGAUM.
...RESPONDENTS
(R1, R3, R4 AND R6 - NOTICE SERVED; R2 DECEASED;
R1 - DIED, REPRESENTED BY R2 TO R5);
R5-DIED, REPRESENTED BY R2 TO R4)
THIS REGULAR SECOND APPEAL IS FILED UNDER SETION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 20.02.2007, PASSED IN
R.A.NO.18/1998, ON THE FILE OF THE CIVIL JUDGE, (SR.DN.)
GOKAK AND THE JUDGMENT AND DECREE DATED 27.06.1998
PASSED IN O.S.NO.563/1989, ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR.DN.) GOKAK AND DISMISS THE PLAINTIFF'S SUIT AND
ALLOW THIS APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed by defendant Nos.1 to 3 challenging the judgement and decree dated 20.02.2007 passed in R.A.No.18/1998, by the Civil Judge (Sr.Dn.), Gokak and the judgment and decree dated 27.06.1998 -4- NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 passed in O.S.No.563/1989 on the file of the Principal Civil Judge (Jr.Dn.), Gokak. The Trial Court has decreed the suit for specific performance of contract and the same is affirmed by the First Appellate Court. Therefore, defendant Nos.1 to 3 have preferred the instant Regular Second Appeal.
2. For the purpose of convenience, the ranking of the parties is referred as per their status before the trial Court.
3. Heard the arguments from the learned counsel for the appellants.
4. Respondents are served with notices, but they remained absent.
5. The plaintiffs have filed a suit for specific performance of contract dated 07.03.1973 (Ex.P.1) and filed suit after 16 years from the date of execution of the agreement of sale and the Trial Court by assigning reason that the agreement of sale is registered agreement and given possession to the plaintiffs and defendant No.3. Hence, decreed the suit. The First Appellate Court has confirmed the -5- NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 judgment and decree passed by the Trial Court on the reason that the agreement of sale is registered one and plaintiffs were ready and willing to perform their part of contract. Therefore, on these reasons, confirmed the judgment and decree of the Trial Court granting specific performance of agreement.
6. Being aggrieved by this, defendant Nos.1 to 3 have preferred this Second Appeal. This Court while admitting the appeal has framed following substantial questions of law on 13.07.2012:
"i) O.S.No.563/1989 when instituted on st 24.10.1989 by the 1 respondent, 16 years after the agreement of sale deed dated
07.03.1979, Ex.p.-1, for specific performance, in the matter of conveyance of the suit schedule property, being agricultural land, whether the Courts below were justified in exercising discretion under Section 20 of the Specific Relief Act, 1963?
ii) Whether the Courts below were justified in concluding that the plaintiff was ready and willing to perform his part of the contract in the absence of pleadings and proof?"
7. The plaintiffs and defendant No.3 are co-contractees. Defendant No.1 is the owner of the suit schedule land. Ex.P.1 is the registered agreement of sale -6- NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 dated 07.03.1973. It is stipulation in the said agreement of sale that within one year the plaintiffs and defendant No.3 had to pay the remaining sale consideration and get the sale deed registered. But the plaintiffs have filed a suit after 16 years from the date of the agreement of sale i.e. on 24.10.1989.
8. At the time of registration of agreement of sale, earnest money amount of Rs.1,100/- was paid to defendant No.1. The total sale consideration was Rs.5,000/-. The plaintiffs in their plaint have stated that defendant No.1 has agreed to receive the remaining balance sale consideration at the time of execution of registered sale deed, but in the agreement of sale one year time is stipulated for performance of agreement. Therefore, the time is essence of contract in this case as per Ex.P.1. But very pleading of the plaintiffs in the plaint that they were intending to pay the balance sale consideration at the time of registration of sale deed proved that the plaintiffs were never ready and willing to perform their part of contract so as to get registration of sale deed. Section 16(c) of the Specific Relief Act, 1963 (for -7- NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 short, 'the Act, 1963') stipulates burden of proof on the plaintiffs to prove their readiness and willingness to perform their part of contract. The readiness and willingness is continuous one. In the decision of the Hon'ble Supreme Court in the case of U.N.Krishnamurthy (since deceased) Thr. LRs vs. A. M. Krishnamurthy reported in AIR 2022 SC 3361 were pleased to laid down the law as under:
"23. Section 16 of the Specific Relief Act, 1963, as it stood at the material time (prior to amendment with effect from 1.10.2018), inter alia, provides:-
"16. Personal bars to relief.--Specific performance of a contract cannot be enforced in favour of a person--
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Explanation. --For the purposes of clause (c), --
(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
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NC: 2024:KHC-D:4773 RSA No. 1554 of 2007
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
24. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific performance of a contract in favour of a person, who fails to aver and prove his readiness and willingness to perform his part of contract. In view of Explanation (i) to clause (c) of Section 16, it may not be essential for the plaintiff to actually tender money to the defendant or to deposit money in Court, except when so directed by the Court, to prove readiness and willingness to perform the essential terms of a contract, which involves payment of money. However, explanation (ii) says the plaintiff must aver performance or readiness and willingness to perform the contract according to its true construction.
25. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.
29. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors. 4, this Court reiterated that Section 16(c) of the Specific Relief Act, 1963 envisages that the Plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which were to be performed by him other than those terms, the performance of which has been prevented or waived by the Defendant. In N.P. Thirugnanam (supra) this Court said that the continuous readiness and willingness on the part of the Plaintiff was a -9- NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 condition precedent for grant of the relief of Specific Performance.
32. In K.S. Vidyanadam v. Vairavan6, Justice B.P. Jeevan Reddy said that grant of the relief of specific performance is discretionary and the Court is not bound to grant it. This Court further held that though time is not of essence to a contract relating to transfer of property, such contracts need to be completed within a reasonable time period.Thus the time element cannot be completely ignored.
33. In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:-
(i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and
(ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963."
9. Therefore, where the time is essence of contract, the plaintiffs shall adhere to it. The plaintiffs are given one year time, to pay balance sale consideration amount, but not paid. The plaintiffs but have filed suit after 16 years from the date of the agreement of sale. Furthermore, from the averments pleaded by the plaintiffs themselves it proves that the plaintiffs were never ready and willing to perform their part of contract within one year as they have made averments that they would give balance sale consideration amount at the time of registration of sale deed, but not
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NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 performed their part. Therefore, as per Section 16 (c) of the Act, 1963 the plaintiffs are not entitled to take benefit ofrelief of specific performance of agreement.
10. The plaintiff and defendant No.3 are co- contractees. To file a suit for specific performance of contract, all the co-cotractees shall file a suit for specific performance of contract and if one contractee is not ready to perform his part of contract, the suit by another co- contractee is not maintainable. In this regard I place reliance on the judgment of Hon'ble Supreme Court reported in (1999) 9 SCC 380 in the case of Mukesh Kumar and others vs. Col. Harbans Waraich and others. In the similar circumstances the Hon'ble Supreme Court was pleased to hold at paragraph No.6 as follows:
"6. Specific performance of a contract can be enforced by any party to the contract. If there are more parties than one, specific performance of a contract cannot be decreed in the absence of some of the parties to the contract. If some of the parties entitled to the benefit of the contract are not willing to be arrayed as plaintiffs they should be impleaded as defendants. Section 23(a) of the Specific Relief Act (now Section 22) covers such a case. In Nirmala Bala dasi v. Sudarsan Jana (AIR 1980 CAL 258) it is held that one of the co-promisees may sue for specific performance making the other co-promisees
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NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 as defendants. Judgment can be given in favour of the persons interested whether they are joined as plaintiffs or as defendants. (See:- Monghibai v. Cooverji Umersey). In a case where property was agreed to be transferred to three co-promisees and all the three filed a suit for specific performance of the contract but only one of them came to the witness box in support of the claim, it has been held that the other two co-promisees would also be entitled to a decree of specific performance. In the case of co-contractees it is not necessary that all of them should be ranged on the same side for obtaining specific performance. It is sufficient if all of them are before the court. (See: Jagdeo Singh v. Bisambhar). But where a single contract is to convey a land to several persons and the contract is not (sic) indivisible, some of the joint constractees cannot seek specific performance if the other contractees do not want that relief."
11. Therefore, where there are two or more contractees, one contractee cannot maintain a suit for specific performance of contract when other co-contractees are not made parties to the suit. Even if the other co- contractees are not willing to come on record as plaintiffs, then they shall have to be arrayed as defendants, but in the present case, if other co-contractee is not willing to perform his part of contract then decree for specific performance of contract cannot be granted as per Section 15 of the Specific Relief Act, the decree for specific performance of contract may be obtained by party to the
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NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 agreement for sale. Section 15(a) of the Specific Relief Act can also be construed as having a plural meaning which means 'party' also be construed as 'parties' to the contract. This principle of law is lost sight by both the trial Court and the first appellate Court.
12. The trial Court and the first appellate Court have just swayed away on the facts that the agreement of sale dated 07.03.1973 is registered one and possession is given in favour of the plaintiff and defendant No.3. Just because agreement of sale is registered one and possession might also have been given to the plaintiff and defendant No.3, that cannot be a factor to grant decree for specific performance of contract in toto.
13. As per section 20 of the Specific Relief Act 1963, (before Amendment Act, 2018) grant of relief of specific performance of contract is a discretionary one, as the Courts shall exercise principles of judicial discretion. What are the factors governing judicial discretion is enumerated in section 20 of the Specific Relief Act. The Hon'ble Supreme Court in the case reported in (1997) 3 SCC 1 in the case of
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NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 K.S.Vidyanadam vs. Vairavan has laid down the law that grant of relief of specific performance is a discretion and the Court is not bound to grant the relief just because the agreement of sale is a registered one.
14. As per Section 20 of the Specific Relief Act 1963, it is discretion as to decreeing specific performance (before amendment Act, 18 of 2018). Therefore, it is a discretion to grant decree for specific performance, the Court is not bound to grant such decree merely because it is lawful to do so; but the discretion of the Court shall not be arbitrary but have sound and reasonable guided by judicial principles and capable of correction by Court of appeal. If, decree for specific performance of contract is causing hardship, amounts to arbitrary and amounting to unfair advantage over the defendant by the plaintiff, then, the discretionary relief cannot be exercised in favour of plaintiff.
15. In the present case time is essence of contract as stipulated in the agreement itself. Though, for an instance, according to the stipulation in agreement that the time is not
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NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 essence of contract, but such contract needs to be completed within a reasonable time. Thus, the time factor cannot be ignored completely. But in the present case the plaintiff has taken 16 years time to file a suit from the date of agreement of sale i.e., from 07.03.1973. The plaintiff has taken 16 yeas long time in filing the suit. It proves that the plaintiff was never ready and willing to perform his part of contract.
(Emphasis supplied by me)
16. Therefore both the trial Court as well as the first appellate Court have not exercised their judicial discretion properly and without considering the relevant provisions discussed above but, in a mechanical way by observing that just because the agreement of sale is registered one, granted decree in favour of the plaintiff, is unsustainable in law and thus the judgment and decree passed by both the trial Court and the first appellate Court are liable to be set aside. Consequently the suit filed by the plaintiff is liable to be dismissed. Accordingly, I answer the substantial questions of law No.1 and 2 in the negative that both the Courts are
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NC: 2024:KHC-D:4773 RSA No. 1554 of 2007 not justified in decreeing the suit of the plaintiff for specific performance of contract. Hence, I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 20.02.2007, passed in R.A.No.18/1998, by the Civil Judge (Sr.Dn.), Gokak, and the judgment and decree dated 27.06.1998, passed in O.S.No.563/1989, by the Prl. Civil Judge (Jr.Dn.), Gokak, are set aside.
iii) The suit in O.S.No.563/1989 is dismissed.
iv) No order as to costs.
v) Draw decree accordingly.
Sd/-
JUDGE SSP: Para 1 to 9 MRK: Para 10 to end CT:ANB, List No.: 1 Sl No.: 40