Karnataka High Court
G M Virupakshappa vs Y Shivanna on 12 October, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:37252
RSA No. 1061 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1061 OF 2019 (SP)
BETWEEN:
1. G.M. VIRUPAKSHAPPA
S/O MAHESHWARAPPA
AGED ABOUT 55 YEARS
RESIDING AT D.NO.1778/9,
VINAYAKA BADAVANE,
2ND CROSS, VIDYANAGARA
DAVANGERE - 577 002.
...APPELLANT
(BY SRI HIREMATHAD MAHESHIAH RUDRAYYA, ADVOCATE)
AND:
1. Y. SHIVANNA
S/O DODDAKENCHAPPA
AGED ABOUT 85 YEARS
Digitally signed
by SHARANYA T R/AT NO.5, 3RD CROSS,
Location: HIGH 2ND MAIN, VIJAYANAGAR
COURT OF TUMKUR - 577 302.
KARNATAKA ...RESPONDENT
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.02.2019 PASSED IN
R.A.NO.119/2018 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AT DAVANGERE DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 27.08.2018
PASSED IN O.S.NO.461/2009 ON THE FILE OF THE ADDL.CIVIL
JUDGE AT DAVANGERE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:37252
RSA No. 1061 of 2019
JUDGMENT
This matter is listed for admission. The junior counsel seeks time. On the previous occasion also, through proxy counsel, learned counsel for the appellant sought time on the ground that he is is not keeping well and not assisting the court.
2. Having perused the records and grounds, this appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. The case of the plaintiff before the Trial Court is that he has executed a sale agreement dated 20.09.2008 and he had given advance of Rs.1 lakh on 19.09.2008 to the defendant. Even though, he was ever ready and willing to perform his part of contract, the defendant did not come forward to execute the sale deed. Hence, he had filed the suit before the Trial Court in O.S.No.461/2009.
3. The defendant appeared through counsel and filed the written statement denying the allegations made in the plaint. It is contended that, he acted upon in terms of agreement dated 20.09.2008 but, the plaintiff has not turned up to obtain the sale deed as per the agreed terms and denied -3- NC: 2023:KHC:37252 RSA No. 1061 of 2019 the allegations made against him. The defendant has approached the plaintiff with the cheque issued by the plaintiff dated 19.09.2008 issued in his favour seeking for revalidation of the cheque or in the alternative for issuance of another cheque and specifically denied the averments made in the plaint.
4. The plaintiff, in order to prove his case, examined himself as P.W.1 and also examined one witness as P.W2 and got marked the documents as Exs.P1 to P8 and closed his side. On behalf of the defendant, one witness is examined as D.W.1 and another witness as D.W.2 and got marked the documents as Exs.D1 to D7.
5. The Trial Court, having considering both oral and documentary evidence placed on record, answered issue No.1 partly in affirmative and partly in negative considering the material on record and the sale consideration is fixed as Rs.3,58,000/- and in the presence of D.W.2, cash of Rs.55,000/- was paid and cheque for Rs.45,000/- was issued. The defendant did not present the cheque Ex.D7 and encashed it within three months from the date of issuance of cheque. -4-
NC: 2023:KHC:37252 RSA No. 1061 of 2019 The plaintiff also admitted in the cross-examination that the defendant has not encashed the cheque Ex.D7 and only received the cash of Rs.55,000/-. Having taken note of the said material on record, the Trial Court answered issued No.2 as negative that the plaintiff was not ready and willing to perform his part of contract and hence, ordered that he is not entitled for any relief.
6. Being aggrieved by the judgment and decree of the Trial Court, the plaintiff has filed an appeal before the First Appellate Court in R.A.No.119/2018 and the First Appellate Court also, on re-assessing the material on record, formulated the point that whether the plaintiff has made out sufficient ground that the Trial Court has not properly appreciated the documents and the evidence and the judgment of the Trial Court is opposed to law and whether the appellant has made out sufficient grounds that there are sufficient material to intervene in the judgment and decree passed by the Trial Court.
7. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, taken -5- NC: 2023:KHC:37252 RSA No. 1061 of 2019 note of the fact that it is not in dispute that Ex.P1 is executed by respondent by receiving cash of Rs.55,000/- and cheque for Rs.45,0000/- and also it is the case of the plaintiff that though he was ready and willing to perform his part of contract, respondent has not come forward to execute the sale deed. It is an undisputed fact that sale transaction held at Tumakuru and amount fixed for Rs.3,58,000/- in respect of the suit schedule property. It is also an undisputed fact that as per the recital of Ex.P1, the appellant should take regular sale deed within four months. On the basis of these admissions, one thing is clear that the respondent has executed Ex.P1 in respect of the suit schedule property. The legal notice was issued by the appellant on 18.03.2009 and though agreement was executed on 20.09.2008, legal notice was issued by the appellant on 18.03.2009 and not within 4 months and the notice was issued almost after 7 months and these are the factors taken note of by the First Appellate Court and also with regard to the remaining amount of Rs.45,000/-, cheque was issued and the same was not encashed and also when the cheque was not encashed, plaintiff did not put any efforts to -6- NC: 2023:KHC:37252 RSA No. 1061 of 2019 see that the cheque is presented and all these factors are taken note by the First Appellate Court also.
8. When such finding is given by the Trial Court and the First Appellate Court, the question of granting any specific relief does not arise. The plaintiff has filed this appeal before this Court for praying for an order for specific performance and when both the Courts have taken note of the material on record and when the appellant was not ready to perform his part of contract in terms of the agreement, both the Courts have taken note of the agreement dated 20.09.2008 and also taken note of part payment and with regard to the advance amount, cheque was given and cheque was not presented and legal notice was issued almost after 7 months, though date is fixed as four months to complete the transaction. Hence, there is no error committed by the Trial Court and the First Appellate Court in rejecting the prayer for specific performance. Hence, no grounds are made out to admit the appeal and frame any substantial question of law.
Accordingly, the appeal is dismissed.
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NC: 2023:KHC:37252 RSA No. 1061 of 2019 In view of dismissal of the appeal, pending I.As., if any do not survive for consideration and the same stand disposed of.
Sd/-
JUDGE ST List No.: 1 Sl No.: 62