Karnataka High Court
Sarojamma vs A Y Sathyavathi on 6 September, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE AJIT J.GUNJAL
R.F.A. NO.1541/2003
BETWEEN :
Smt.Sarojamma,
W/o.Nanjundappa,
Aged about 50 years,
Residing at M.C.Changappa Farm,
Kumbalagodu Village,
Kengeri Hobli, Bangalore,
Rural District. ...APPELLANT
(By Sri.Somashekara Angadi, Adv.)
AND :
Smt.A.Y.Sathyavathi,
W/o.S.B.Krishnegowda,
Valagere Halli village,
Kengeri Hobli,
Bangalore South Taluk,
Bangalore Rural District. ...RESPONDENT
(By Sri.Ramesh Ananthan, Adv.)
. . . .
This R.F.A. is filed under Section 96 of the Code of
Civil Procedure against the Judgment and Decree dated
23.06.2003 passed in O.S.No.631/94 on the file of the
XI Additional City Civil Judge, Bangalore (CCH-8),
dismissing the suit for specific performance.
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This R.F.A. coming on for hearing, this day, the
Court delivered the following:
JUDGMENT
This is a plaintiff's appeal. The suit is filed by her for enforcement of an agreement to sell dated 22.02.1991.
2. During the course of this judgment, the parties would be referred to as per their ranking in the Trial Court.
3. The case of the plaintiff can be summarized as follows:
The defendant is the owner of Sy.No.36/1 of Valagerehalli in Kengeri Hobli, Bangalore South Taluk measuring about 31 guntas. Out of the said 31 guntas, the defendant has agreed to part with the property to an extent of East-West 40ft. and North-South 45ft. Accordingly document was executed styled as an `agreement to sell' dated 22.02.1991. The said -3- document is accompanied by GPA as well as affidavit. The claim of the plaintiff is that pursuant to the said agreement, a sum of Rs.40,000/- was paid and she was put in possession of the suit schedule property. The plaintiff was in correspondence with the defendant for execution of the sale deed. But however, the defendant denied. Hence, a legal notice was issued on 19.11.1992 calling upon the defendant to execute the registered sale deed in her favour. An untenable reply was given by the defendant on 28.12.1992. The plaintiff would aver that she was always ready and willing to perform her part of the contract as per the `agreement to sell' dated 22.02.1991.
4. On being served with the summons, defendant entered appearance and denied the plaint averments inter alia contending that both the plaintiff and the defendant are close friends and the plaintiff wanted to raise some loan from the financial institution. Hence, sought for the documents. In the circumstances, a document was sought to be executed. Indeed the -4- defendant would deny that she has received any consideration amount, much less Rs.40,000/-. Indeed the case of the defendant is that she was coerced into signing the document styled as `agreement to sell', Power of Attorney as well as the affidavit. Thus, according to the defendant, the so-called `agreement to sell' is not at all enforceable. On the basis of these pleadings, the learned Trial judge has framed the necessary issues:
1. Whether the plaintiff proves that on 22.2.1991 the defendant agreed to sell the suit schedule property to the plaintiff for Rs.40,000/- received entire consideration and executed an agreement of sale?
2. Whether the defendant proves the circumstances under which she executed a Power of attorney in favour of plaintiff as contended in par-4 of her written statement?
3. Whether the plaintiff was ready and willing to perform her part of contract? -5-
4. Whether the plaintiff is entitled to specific performance?
5. What decree or order?
5. The learned Trial Judge, on the basis of evidence has recorded a finding that the plaintiff has proved that the defendant has agreed to sell the property for a sum of Rs.40,000/- and she has received the consideration and the defendant has failed to prove the circumstances under which, she executed the Power of Attorney in favour of the plaintiff. The learned Trial judge also recorded a finding that the plaintiff is ready and willing to perform her part of the contract. But however, non-suits the plaintiff on the ground that there is no material to show that the defendant had title to the property.
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6. I have heard Mr.Somashekara Angadi, learned counsel appearing for the plaintiff as well as Mr.Ramesh Ananthan, learned counsel appearing for the defendant.
7. Mr.Somashekara Angadi, learned counsel appearing for the plaintiff submits that once the learned Trial Judge has answered all the issues in favour of the plaintiff, there are no justifiable grounds for the learned Trial Judge to deny the decree for specific performance. He submits that on that score alone, the plaintiff is entitled to succeed.
8. Mr.Ramesh Ananthan, learned counsel appearing for the defendant submits that it has come out in the evidence that the plaintiff and her husband are coolies and their income is Rs.1,500/- per month. In the first instance, they did not have any money to pay under the said `agreement to sell.' He also further submits that the alleged documents have come into existence only in the year 1991 and after a lapse of 22 -7- years, granting a decree for specific performance causes irrepairable loss to the defendant.
9. I have given my anxious consideration to the submissions made be learned counsel appearing for the parties.
10. The following points would arise for consideration:
1. Whether the judgment and decree of the trial court warrants interference?
2. Whether the plaintiff is entitled for refund of money under Order 7 Rule 7 Code of Civil Procedure?
11. Indeed a perusal of the evidence discloses that the finding recorded by the learned Trial Judge on the question of execution of the documents cannot be faulted. Indeed a finding is recorded that the plaintiff has parted with a sum of Rs.40,000/- and the defendant has received the same. But however, the moot question would be whether the plaintiff is entitled -8- for a decree for specific performance, more so having regard to Section 20 of the Specific Relief Act. Indeed a perusal of Section 20 of the Act deals with the discretion as to decreeing the suit for specific performance. Indeed the jurisdiction to decree a suit for specific performance is always discretionary and the Courts are not necessarily bound to grant such a relief merely because it is lawful to do so. In the case on hand, it is to be noticed that the terms of the contract at the time of entering into a contract are such that there is a possibility that the plaintiff did not have any monies with them inasmuch as it has come out in evidence that the total income of the plaintiff and her husband is about Rs.1,500/- per month. Nevertheless, the plaintiff has averred that she has paid a sum of Rs.1,000/- which has been received by the defendant. It is also to be noticed that granting a decree for specific performance would also involve substantial hardship on the defendant, which she had not foreseen at the time of execution of the sale agreement. On that score, I am of -9- the view that the discretion has been exercised by the learned Trial Judge declining to grant a decree for specific performance, albeit on a different ground inasmuch as the defendant did not have title as on the date when she executed the agreement. It is also to be noticed that the suit property belongs to the husband of the defendant. The defendant has executed the `agreement to sell'. In the circumstances, I am of the view that the finding on that score also cannot faulted inasmuch as the defendant did not have any marketable title for execution of the said agreement.
12. In the circumstances, the question would be, as to what is the relief, which could be granted in favour of the plaintiff when the agreement is stated to have been proved including the parting of Rs.40,000/-. A perusal of the relief sought for in the suit does not disclose that the plaintiff has sought for refund of the money in case, the suit for specific performance is not granted. But however, it is to be noticed that the relief is worded as "such other relief or reliefs as this Court
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deems fit to grant in the circumstances of the case". Indeed Order 7 Rule 7 of the Code of Civil Procedure empowers the Court to mould the relief. If any decision is required, one can refer to a decision rendered in case of Smt.Neelawwa V/s. Smt.Shivawwa reported in 1988(1) Kar.L.J. 58.
13. Though there are no pleadings to that effect however, it is brought to my notice that the proceedings are pending before the Assistant Commissioner under Section 79A and 79B of the Karnataka Land Reforms Act inasmuch as an agreement could not have been entered into between the parties having regard to the fact that it is an agricultural land. On that score also, the suit is not maintainable.
14. In these circumstances, I am of the view that the plaintiff is entitled for refund of the sum of Rs.40,000/-, which was paid pursuant to the agreement. Indeed the plaintiff is also entitled for
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interest from the date of agreement till the date of realization. Hence, the following order:
(a) Appeal is allowed in part.
(b) The judgment and decree passed by the learned Trial Judge stands modified.
(c) The dismissal of the suit for specific performance stands confirmed.
(d) The plaintiff however, is entitled for refund of Rs.40,000/- with simple interest at the rate of 24% per annum, which is payable from the date of agreement i.e., 22.02.1991 till the date of payment.
Appeal stands disposed of accordingly.
SD/-
JUDGE SPS