Karnataka High Court
B S Balakrishna Hebbar vs Ravi K N on 5 March, 2025
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2025:KHC:10366-DB
RFA No. 570 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.570 OF 2023 (SP)
BETWEEN:
1. B. S. BALAKRISHNA HEBBAR
S/O. LATE SEETHARAMA HEBBAR
AGED ABOUT 65 YEARS
2. SMT. ASHWINI
W/O. B. S. BALAKRISHNA HEBBAR
AGED ABOUT 53 YEARS
3. SANATH KUMAR
S/O. B. S. BALAKRISHNA HEBBAR
AGED ABOUT 26 YEARS
ALL ARE RESIDING AT
BUKLAPURA, KURUVALLI POST
THIRTHAHALLI - 577 423.
Digitally signed by
MOUNESHWARAPPA ...APPELLANTS
NAGARATHNA
Location: High Court (BY SRI JOSEPH ANIL KUMAR A., ADVOCATE)
of Karnataka
AND:
1. RAVI K. N.
S/O. S. NARASIMHAMURTHY
AGED ABOUT 42 YEARS
R/AT BRAHMANA KEPPIGE
BRAHMAN KEPPIGE POST
SAGARA TALUK
SHIVAMOGGA DISTRICT - 577 432.
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NC: 2025:KHC:10366-DB
RFA No. 570 of 2023
2. SMT. LAKSHMI
W/O. KRISHNAPOOJARI
AGED ABOUT 60 YEARS
R/AT KALAGAARU
MELIGE POST, THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432.
...RESPONDENTS
(BY SRI MANJUNATH G. KANDEKAR, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 17.09.2022
PASSED IN O.S. NO.11/2022 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND J.M.F.C., THIRTHAHALLI, PARTLY DECREEING THE SUIT
SPECIFIC PERFORMANCE OF SALE AGREEMENT.
THIS REGULAR FIRST APPEAL IS COMING ON FOR ORDERS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellants/defendants challenging the judgment and decree dated 17.9.2022 passed by the learned Senior Civil Judge and Judicial Magistrate of First Class, Thirthahalli, Shivamogga District (hereinafter referred to as the trial Court, for brevity), in O.S.No.11 of 2022.
For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are the defendants and the respondents are plaintiff Nos.1 and 2 before -3- NC: 2025:KHC:10366-DB RFA No. 570 of 2023 the trial Court.
2. The brief facts of the plaintiffs' case is as under:
The plaintiffs had filed a suit in O.S.No.11 of 2022 for specific performance of contract. It is the case of the plaintiffs, that defendant Nos.1 to 3 being the husband, wife and son respectively, are the owners of the suit schedule property, and they entered into an agreement of sale with plaintiffs agreeing to sell the schedule property for a total sale consideration of Rs.18,50,000/- on 10.11.2021 and defendant No.1 received advance sale consideration of Rs.18,00,000/- from the plaintiffs through RTGS (Real Time Gross Settlement) and the balance sale consideration was agreed to be received at the time of registration of sale deed on or before 09.01.2022. As per the agreement, the entire sale process ought to have been completed within 09.01.2022, but, the defendants postponed the execution of registered sale deed in favour of the plaintiffs. Hence, on 08.01.2022, the plaintiffs got issued legal notice to the defendants and called upon them to execute the sale deed by receiving balance sale consideration amount of Rs.50,000/-, but, the defendants neither replied the notice nor executed sale deed in favour of the plaintiffs. Hence, the plaintiffs filed suit for -4- NC: 2025:KHC:10366-DB RFA No. 570 of 2023 specific performance of the contract against the defendants.
3. It is contended that the plaintiffs have always been ready and willing party to perform their part of the contract, but, the defendants failed to perform their contract and to execute the sale deed in favour of the plaintiffs. Hence, the suit is filed by the plaintiffs.
4. Defendants appeared through their counsel, but, they did not file any written statement and denied the suit of the plaintiffs. On these grounds, the trial Court framed the following points for consideration as under:
1. Whether the plaintiffs prove that on 10-11-2021, there has been an agreement in terms of Ex.P.1 between them and defendants in which the defendants have agreed to sell suit property to them for a total sale consideration amount of Rs.18,50,000/-?
2. Whether the plaintiffs prove that they have paid Rs.18,00,000/- by way of RTGS towards the sale consideration and they are due to pay remaining amount of Rs.50,000/- towards sale transaction?
3. Whether the plaintiffs prove their readiness -5- NC: 2025:KHC:10366-DB RFA No. 570 of 2023 and willingness to perform their part of agreement?
4. Whether the plaintiffs prove that, they are entitled for specific performance and for other reliefs sought for?
5. What Order or Decree?
5. In order to substantiate their case, plaintiff No.1 got examined himself as PW.1 and got marked 19 documents as per Exs.P1 to P19. But, defendants neither cross examined PW.1 nor entered the witness box. The trial Court after recording the evidence and considering the oral evidence, answered point Nos.1 and 2 in the affirmative, point No.3 in the negative, point No.4 partly in the affirmative and decreed the suit in-part and directed the defendants to refund the earnest amount of Rs.18,00,000/- to the plaintiffs with an interest at the rate of 6% per annum only. In view of grant of relief as to refund of earnest amount, the relief in respect of specific performance has been denied.
6. Being aggrieved by the judgment and decree passed by the trial Court, the defendants have preferred this appeal. -6-
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7. Learned counsel for the appellants/defendants argued and submitted that the judgment and decree passed by the trial Court is illegal and liable to be dismissed. Though the trial Court answered issue Nos.1 and 2 in favour of the plaintiffs, the trial Court has declined to grant specific performance. In fact, the appellants/defendants are illiterates, they do not understand the Court proceedings and they completely relied on advocate youngest who represented them. The case of the appellants is that an opportunity ought to have granted by the trial Court for them to cross examine plaintiff No.1 (PW.1) to prove their rights.
8. Learned counsel further contended that the trial Court has not considered the seriousness of the plaint and in the absence of written statement by the defendants, has proceeded to pass the impugned judgment based on the averments made in the plaint and absence of oral evidence of the defendants.
9. In support of their case, learned counsel relied upon the judgment reported in 2012 (5) SCC 265 in the case of C. N. RAMAPPA GOWDA VS. C.C. CHANDREGOWDA DEAD BY LRS AND ANOTHER, wherein, the Hon'ble Apex Court held -7- NC: 2025:KHC:10366-DB RFA No. 570 of 2023 that, even in the absence of filing the written statement, the Court cannot pass the judgment and decree merely placing reliance on plaint and affidavit averments. Thus, the learned counsel contended that the judgment and decree passed by the trial Court in O.S.No.11 of 2022 is contrary to the above principles.
10. Learned counsel further relied upon the decision reported in AIR 1989 SC 162 in the case of MODULA INDIA V. KAMAKSHYA SINGH DEO, wherein, the Hon'ble Apex Court held that it is well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross examination. Mere statement of the plaintiff's witnesses cannot constitute the plaintiff's evidence unless it is tested by cross examination. The right of defence to cross-examine plaintiff's witnesses can be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. Thus, it should be possible to take the view that though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the -8- NC: 2025:KHC:10366-DB RFA No. 570 of 2023 plaintiff is not sufficient to fulfill the terms of the statute.
11. It is further contended that the trial Court has committed an error in concluding that since the written statement of the appellants/defendants was not filed, there was no requirement for cross examination and further, the trial Court has passed the impugned judgment within 15 days from the date of filing the plaintiffs' evidence, which is again, depriving an opportunity of the appellants to contest the matter. Now Execution Petition No.31 of 2022 is pending before the Executing Court and the decree holders are proceeding with the execution petition and under such circumstances, learned counsel for the appellants/defendants prayed to remand the matter for fresh consideration and to allow the appeal.
12. Per contra, learned counsel for the plaintiffs/respondents vehemently argued and took up the contention that the trial Court considering the oral and documentary evidence on record has come to a proper conclusion by holding that the defendants being the owner of the suit schedule property entered into agreement of sale with -9- NC: 2025:KHC:10366-DB RFA No. 570 of 2023 the plaintiffs and received the advance sale consideration of Rs.18,00,000/- and they failed to execute the sale deed. Hence, the trial Court has rightly decreed the suit in-part and directed the defendants to pay the earnest amount of Rs.18,00,000/- to the plaintiffs with an interest at the rate of 6% per annum which is in accordance with law. Hence, learned counsel for the respondents supported the judgment and decree passed by the trial Court and thus, prayed for dismissal of the appeal. The plaintiffs have not filed any cross appeal/objection seeking to grant specific relief.
13. Heard, perused the records, considered the submissions made by learned counsel for the parties and the following points that arise for our consideration are:
1. Whether the plaintiffs proved that, defendants entered agreement of sale with them in respect of suit schedule property and paid advance sale consideration of Rs.18,00,000/-.?
2. Whether the direction of trial Court calls for interference by this Court or remand the matter for fresh consideration?
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14. In support of the oral testimony of PW.1, he relied upon Ex.P1 Registered Agreement of Sale dated 10.11.2021 executed by defendant Nos.1 to 3 in favour of plaintiff Nos.1 and 2. Ex.P2 is the RTC extract in respect of the suit schedule property, Ex.P3 is the Mutation Register Extract of the suit schedule property, Ex.P4 is Form No.15, Ex.P5 is the copy of legal notice dated 8.1.2022 issued by plaintiffs to the defendants, wherein the plaintiffs, have called upon the defendants to receive balance sale consideration of Rs.50,000/- and to execute sale deed in favour of plaintiffs, Exs.P6 to P8 are three postal receipts in order to show that the copy of legal notice was served upon the defendants, Exs.P9 to P11 are three postal acknowledgments to show that the registered post was served upon the defendants, Ex.P12 is the office copy of the legal notice dated 23.02.2022, Exs.P13 to 15 are three postal receipts and Exs.P16 to 18 are the three postal acknowledgments and Ex.P19 is Form No.15. The defendants appeared through their counsel, but they did not file the written statement and failed to cross examine PW.1, hence the evidence of PW.1 is not contradicted. Thus it is clear that Ex.P1 Agreement of sale is a registered instrument, whereupon the
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NC: 2025:KHC:10366-DB RFA No. 570 of 2023 plaintiffs have paid advance sale consideration of Rs.18,00,000/- to the defendants through RTGS account maintained by the plaintiffs to the account of defendants. It also clearly establishes that Ex.P1 registered Agreement of sale clearly mentioned about the consideration amount of Rs.8,00,000/- paid towards sale consideration to the defendants and later Rs.8,65,000/- in favour of defendants by way of RTGS money transfer mode to the account maintained by the defendants through the account maintained by the plaintiffs at Co-operative Bank, Thirthahalli Branch to the account of defendants maintained at State Bank of India, Thirthahalli Branch and later an amount of Rs.1,35,000/- was paid on 28.01.2021 to the defendants by plaintiffs and accordingly only Rs.50,000/- was the balance to be paid to the defendants. Admittedly Ex.P1 is Registered instrument, recital clearly establishes that as on the date of agreement, the defendants received a sum of Rs.18,00,000/- and they agreed to execute sale deed by receiving balance consideration of Rs.50,000/-. Therefore, taking into consideration the dates of notice and the last date prescribed for ensuring the execution of sale deed as per recitals made in Ex.P1 and in view of suit not being
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NC: 2025:KHC:10366-DB RFA No. 570 of 2023 immediately filed by the plaintiffs against the defendants, as the suit dated 19.04.2022 with respect to time gap of three months from the date of expiry of agreement till the date of the suit and considering the fact that the time was the essence of the contract, the trial Court has declined specific performance. However, it has granted the relief of refund of earnest money in favour of the plaintiffs.
15. The time is essence of contract would apply in such a context, without being unfair and unequitable to the defendants/sellers, as Court should not ignore that a person sells property when he needs money and therefore expects money within stipulated or reasonable time, which would meet the purpose of sale. Therefore, offer of plaintiffs/purchaser in writing and the time and occasion, when offered to pay balance amount to the defendants/seller, is an important factor, which would matter, when put, examines question of discretion i.e., whether or not to grant decree of specific performance. While examining these aspects, quantum of money paid by the plaintiffs/purchaser to defendants/seller may become a relevant fact and that merits reconsideration. In view of the facts of present case that the agreement in question was entered into
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NC: 2025:KHC:10366-DB RFA No. 570 of 2023 between the parties in the month of October and the time for completion was within three months, but the contract was not completed even after three months, however later, a legal notice was issued and after two months, the suit was filed. Therefore, the trial Court has rightly declined to grant specific performance, however, directed the defendants to refund the earnest amount in favour of the plaintiffs.
16. Admittedly, the plaintiffs have not filed any cross appeal or cross objection and they took up contentions that the plaintiffs are entitled for specific performance of the contract. Hence, the judgment and decree passed by the trial Court is in accordance with law.
17. In the case on hand, the appellants being the defendants, have taken up the contention that the matter requires remand as it was an ex-parte decree. But, from the perusal of the entire material, it clearly depicts that the summons were issued to the defendants, they appeared through their counsel, however they did not file written statement and the transaction as contemplated by the plaintiffs is a registered Agreement of sale and the plaintiffs have paid
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NC: 2025:KHC:10366-DB RFA No. 570 of 2023 advance sale consideration through RTGS and the fact that the trial Court has ordered for refund of earnest money, thus, question of remanding the matter to the trial Court for fresh consideration would not arise. On this count also, the appeal filed by the defendants is liable to be dismissed. Hence, no interference is called for.
Accordingly, we proceed to pass the following:-
ORDER
1. The appeal is dismissed.
2. The judgment and decree dated 17.9.2022 passed in O.S.No.11 of 2022 by the learned Senior Civil Judge and Judicial Magistrate of First Class, Thirthahalli, is hereby confirmed.
3. No Order as to costs.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE MN/List No.: 1 Sl No.: 16