Karnataka High Court
Ishwarappa S/O Kotrappa ... vs Somashekhar S/O Virupakshappa Yadwad on 13 June, 2023
-1-
RFA No. 100104 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100104 OF 2017 (SP)
BETWEEN:
1. ISHWARAPPA S/O. KOTRAPPA MARADANNANAVAR,
AGE: 66 YEARS, OCC: RETIRED SERVICE,
R/O: BASAVESHWARA NAGAR, "C" BLOCK,
TQ AND DIST: HAVERI.-581110.
2. SMT. AKKAMAHADEVI W/O. ISHWARAPPA
MARADANNANAVAR, AGE: 64 YEARS,
OCC: HOUSE HOLD WORK, R/O: BASAVESHWARA NAGAR,
"C" BLOCK, TQ AND DIST:HAVERI-581110.
...APPELLANTS
(BY SRI. M. H. ANGADI ADVOCATE; SRI. PRASHANTKUMAR I. M.
AND SRI. R.H. ANGADI, ADVOCATES)
AND:
Digitally signed
by
MOHANKUMAR SOMASHEKHAR S/O. VIRUPAKSHAPPA YADWAD
B SHELAR AGE: 44 YEARS, OCC: BUSINESS,
Date:
2023.06.28 R/O: YALAKKI ONI, TQ AND DIST: HAVERI. -581110.
11:51:01 +0530
...RESPONDENT
(BY SRI. S. R. HEGDE, ADVOCATE)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF
CIVIL PROCEDURE CODE R/W. ORDER 41 RULES 1 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE AND 27/01/2017 MADE
IN O.S.NO.158/2014 PASSED BY THE COURT OF PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, HAVERI, IN THE INTEREST OF JUSTICE AND
EQUITY.
-2-
RFA No. 100104 of 2017
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
ASHOK S. KINAGI J., THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree dated 27.01.2003 passed by the Court of Prl. Senior Civil Judge and CJM., Haveri.
2. For the sake of convenience the parties are referred to as per their ranks before the trial Court.
3. Appellants are the defendants and respondent is the plaintiff. Plaintiff filed a suit for specific performance of contract. It is the case of the plaintiff that non- agricultural land bearing RS. No.270(d), plot No.61 consisting of RCC house and open space shown in para No.3 of the plaint of the suit property. Defendant No.1 is the absolute owner and in possession of the suit property and it is his self acquired property. He was in need of money for family necessity and for repayment of loan amount and intended to sell the suit property. Plaintiff was interested to purchase it and approached the defendant -3- RFA No. 100104 of 2017 No.1 and after mutual negotiation between the plaintiff and it was finalized for Rs.25 lakhs.
4. On 22.11.2013 plaintiff has paid Rs.23 lakhs towards the advance earnest money and agreed to pay the balance consideration amount within one month and the plaintiff paid Rs.23 lakhs. The defendant No.1 after receiving the part consideration amount, he executed a registered agreement of sale deed on the same day 22.11.2013 and it was agreed that the defendant No.1 was executed a registered sale deed in favor of plaintiff by clearing the encumbrances on the property and hand over the documents and possession to the plaintiff. It is further contended that there was a typing mistake in the agreement of sale in respect of property i.e., RS.270/d and plot 61, it was mentioned as 276(d) and plot No.61. It is contended that the value shown in the agreement of sale is correct and the property can be identified by the boundaries. Defendant No.1 after executing an agreement of sale in order to deprive the execution of registered sale -4- RFA No. 100104 of 2017 deed in favor of plaintiff executed a gift deed in favor of defendant No.2. The plaintiff requested the defendant No.1 to execute a registered sale deed but, the defendant No.1 did not execute a registered sale deed. The plaintiff got issued a legal notice on 17.03.2014 calling upon the defendant No.1 to receive the balance consideration amount and to execute a registered sale deed by defendant No.1. The defendant No.1 replied to the legal notice denying the execution of an agreement and also receiving the earnest money. Hence, the cause of action arose for the plaintiff to file a suit for specific contract.
5. The defendant No.1 filed a written statement denying the averments made in the plaint and it is contended that the defendant No.1 never executed an agreement of sale and never appeared before the Sub- Registrar, Haveri for registration, the plaintiff and his henchman on 21.11.2013 when defendant No.1 was gone near Swati Hotel, Haveri, he was he was kidnapped and they took him towards Nelogal village to remote area by -5- RFA No. 100104 of 2017 car, thereafter plaintiff and his henchman assaulted him and robbed the cash and four signed blank cheque from the pocket of defendant No.1. The defendant no.1 protested. On 22.01.2022 plaintiff and his henchman took the defendant No.1 to the house of plaintiff around 10:00 a.m., and detained in a room and told him to secure his son or else to sign certain documents even though, it was protested by defendant No.1 due to torture given by the plaintiff and his henchman to escape from them defendant No.1 agreed to sign some papers under the threat and coercion they took the defendant No.1 to the Sub-registrar office, Haveri and made him to put his signature on agreement of sale dated 22.11.2013 which is illegal and defendant No.1 has not received earnest money of Rs.23 lakhs from the plaintiff. The defendant No.2 coming to know the conditions of defendant No.1 shifted him to Vatsala Hospital, Hubballi for treatment and defendant No.1 filed a private complaint before the competent Court, which is pending and it is contended that the -6- RFA No. 100104 of 2017 plaintiff has no capacity to pay the alleged balance amount. Hence, prays to dismiss the suit.
6. The trial Court on the basis of the pleadings of the parties framed the following issues;
1. Whether the plaintiff proves that, the defendant is absolute owner of suit property and for his family and legal necessity agreed to sell the suit property in his favour for Rs.25,00,000/- and received earnest money of Rs.23,00,000/- and executed a registered agreement of sale on 22.11.2013 with wrong recital as regards R.S.No ?
2. Whether the plaintiff proves that he is ever ready and willing perform his art of contract ?
3. Whether suit is filed within limitation period?
4. Whether the defendant No.1 proves tht the alleged agreement of sale was executed by him under coercion, duress and threat by the plaintiff, without consideration ?
-7-RFA No. 100104 of 2017
5. Whether the plaintiff is entitled for the relief of specific performance of contract or for refund of earnest money with interest ?
6. What order or decree ?
7. In order to substantiate the case of the plaintiff, plaintiff was examined as PW.1 and examined 3 witnesses as PW.2 to PW.5 and got marked documents as Ex.P.1 to Ex.P.8. The defendant No.1 was examined as DW.1 and got marked documents at Ex.D.1 to Ex.D.5. The trial Court after recording the evidence and considering the oral and documentary evidence answered issue Nos.1 to 3 in the affirmative, issue No.4 in the negative and issue no.5 partly in the affirmative and consequently decreed the suit in part and it is ordered and decreed that the suit of the plaintiff is partly decreed with cost and held that the plaintiff is entitled for the refund of earnest money of Rs.23 lakhs from defendant No.1 with interest at the rate of 12% per annum from the date of institution of suit till the actual realization and the claim of -8- RFA No. 100104 of 2017 the plaintiff was relief of specific performance of contract was dismissed.
8. The defendants aggrieved by the judgment and decree passed by the trial Court filed this appeal.
9. Heard the learned counsel for the defendants and learned counsel for the plaintiff.
10. Learned counsel for the defendants submits that the defendant No.1 has not executed the agreement of sale. The outcome of agreement of sale is by undue influence and coercion. He further submits that plaintiff has no financial capacity to pay the remaining balance amount as alleged in the plaint. He further submits that the plaintiff has not produced any records to show that as on the date of execution of an agreement of sale, plaintiff was possessing an amount of Rs.23 lakhs. He also submits that the trial Court without considering the said aspect has drawn a presumption in regard to Ex.P.1, which is the registered agreement of sale and held that the plaintiff has proved the execution of the agreement of -9- RFA No. 100104 of 2017 sale. It is submitted that the plaintiff has failed to prove the contents of Ex.P.1 mere execution of agreement of sale does not amount to proving the contents of Ex.P.1. He further submits that the trial Court has committed an error in answering issue Nos.1 to 3 in affirmative and issue No.4 partly in affirmative. He submits that the trial Court has committed an error in decreeing the suit of the plaintiff. Hence, on all these grounds he prays to allow the appeal.
11. Per contra leaned counsel for the plaintiff submits that in order to prove that the plaintiff had a financial capacity to purchase, examined PW.4 who has deposed that the plaintiff has sold 20 tolas of gold for Rs.2 lakhs and out of the said amount, plaintiff has paid the said consideration amount. He also submits that the plaintiff has borrowed a loan from the private persons. Hence, he submit that the trial Court was justified in drawing a presumption regarding execution of agreement of sale in favour of plaintiff. He also submits that when the
- 10 -
RFA No. 100104 of 2017defendant has taken a specific defence regarding fraud, coercion and undue influence the burden is on the defendant and the defendant has failed to prove the said aspect. Hence, on these grounds he prays to dismiss the appeal.
12. Heard and perused the records and considered the submissions of the learned counsel for the parties.
13. The points that would arise for our consideration are as under;
POINTS
1. Whether the plaintiff proves that the plaintiff has paid a sum of Rs.23 lakhs as an earnest money on 22.11.2013 ?
2. Whether the trial Court was justified in partly decreeing the suit ?
3. Whether the defendant prove that the trial Court has committed an error in decreeing the suit in part?
- 11 -
RFA No. 100104 of 2017
4. What order or decree ?
14. Point No.1: It is the case of the plaintiff the defendant No.1 is the owner of the suit schedule property. He agreed to sell the suit schedule property in favor of the plaintiff for consideration amount of Rs.25 lakhs and the plaintiff paid the amount of Rs.23 lakhs towards the earnest amount and it was agreed that the balance consideration amount to be paid within one month from the date of execution of an agreement of sale and the plaintiff was and is ready and willing to perform his part of contract, but the defendant No.1 committed a breach of contract and defendant No.2 to in order to deprive the legitimate right of the plaintiff pursuant to the agreement sale, executed a gift deed in favor of defendant No.2. The plaintiff got issued a legal notice calling upon the defendant No.1 to receive the balance consideration amount and to execute a registered sale deed. The defendant replied to the said notice denying the execution of an agreement of sale and receiving the balance
- 12 -
RFA No. 100104 of 2017consideration amount. Hence, the plaintiff filed a suit. The plaintiff in order to substantiate the case examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief and produced agreement of sale as Ex.P.1 and Ex.P.2 is the RTC extract which discloses that the suit properties are owned by the defendant No.1. Ex.P.3 is the legal notice. Ex.P.4 is the reply, Ex.P.5 is the copy of FIR, Ex.P.6 is the copy of complaint, Ex.P.7 is the copy of private complaint, Ex.P.8 is the copy of gift deed executed by defendant No.1 in favor of defendant No.2.
15. The plaintiff except oral testimony of PW.1 he has not produced any other records in order to show that the plaintiff was possessing Rs.23 lakhs as on the date of execution of agreement of sale, Rs.23 lakhs is not a small amount. PW.1 in the course of cross-examination has clearly admitted that at the time of alleged payment of Rs.23 lakhs nobody was present. When the PW.1 has clearly admitted in the course of cross-examination that except plaintiff none other witnesses were present at the
- 13 -
RFA No. 100104 of 2017time of passing of earnest money in favor of defendant No.1. PW.2 was examined, who is the attesting witness to Ex.P.1, he has deposed that the defendant No.1 being the owner of the suit schedule property and agreed to sell the suit schedule property in favor of plaintiff for consideration amount of Rs.25 lakhs and the plaintiff paid Rs.23 lakhs to the defendant No.1 and defendant No.1 in turn executed a registered agreement of sale deed in favor of plaintiff.
16. Even from the perusal of cross-examination of PW.1, the plaintiff has not paid the earnest money either before the registration of agreement of sale or even after the registration of agreement of sale. It is the case of the plaintiff that the earnest money was paid prior to the execution of Ex.P.1.
17. None of the witnesses examined by the plaintiff discloses that the alleged amount of Rs.23,00,000/- was paid by the plaintiff to the defendant No.1 and further plaintiff No.2 who is attesting witness, he has not stated that the amount is paid in his presence and
- 14 -
RFA No. 100104 of 2017further examined PW.3 who has deposed that the plaintiff has sold the gold for the purpose of purchasing the said property in the year 2013 and he got the amount of Rs.2,00,000/- from sale of gold and out of the said amount, plaintiff paid the advance sale consideration amount. In the course of cross examination, he has stated that in the month of October-2013, the plaintiff has sold the gold for Rs.2,00,000/- but as per the case of plaintiff, sale is taken place on 22.11.2013, there was no reason for the plaintiff to sell gold in the month of October-2013 and further insofar as PW.3 has spoken only about the sale of gold of 10 grams, worth Rs.2,00,000/-, but plaintiff has not explained about from where the plaintiff has got remaining amount of Rs.21,00,000/-. Plaintiff has examined PW.4. Plaintiff met him and informed that he intended to sell the gold item for the purpose of purchasing the land in the year 2013 and he submit that the purchaser has purchased the gold for Rs.4,00,000/- but in the course of cross examination, he has stated that he is doing agriculture and also running
- 15 -
RFA No. 100104 of 2017medical store and it is contended that he has introduced the plaintiff to the Kalmeshwar Jewellars and Kalmeshwar Jewellars has purchased the said gold. But, the plaintiff has not examined Kalmeshwar Jewellars and also not produced any record to show that plaintiff has sold the gold worth Rs.2,00,000/- and also worth Rs.4,00,000/-. Plaintiff has failed to establish that the he was possessing amount of Rs.23,00,000/- as on the date of sale agreement.
18. The defendant has specifically denied in the written statement that the plaintiff has no financial capacity to pay the alleged advance amount. The burden is on the plaintiff to establish that the plaintiff has sufficient amount to purchase the land to pay the advance amount. Plaintiff except leading oral evidence not produced any documentary evidence to establish that as on the date of execution of agreement of sale, plaintiff was possessing amount of Rs.23,00,000/-. Further, if at all agreement of sale was genuine, nothing is prevented the plaintiff to pay
- 16 -
RFA No. 100104 of 2017Rs.2,00,000/- which is meager and could have got registered the sale deed. Though agr5eement of sale is registered on 23.11.2013, after two days the defendant No.1 got lodged the complaint against the plaintiff alleging that the plaintiff has kidnapped him and harassed and assaulted him and took the signature on the blank papers. So, defendant No.1 under the coercion has signed the agreement. If at all if the defendant has really executed the agreement of sale as contended by the plaintiff in the plaint, there was no necessity for the defendant to lodge a complaint against the plaintiff. Though the complaint was lodged on 24.11.2013, plaintiff kept quite for more than 4 months and got issued legal notice on 24.03.2014. From the perusal of the material on record, it shows the conduct of the plaintiff.
19. Though there is a discrepancy in the agreement for sale, the property under sale was shown as R.S. No.276D and plot No.61 but in the plaint it is mentioned as R.S.No.270D, plot No.61. There is a
- 17 -
RFA No. 100104 of 2017discrepancy in the plot number in the agreement for sale and also in the plaint. The plaintiff himself is having doubt regarding the property alleged to have been kept for sale by the defendant No.1 in favour of plaintiff. Hence, it creates doubt in the minds of Court that the said agreement to sell is created document. All the above facts discloses that the plaintiff has failed to establish that the plaintiff has paid sum of Rs.23,00,000/- as advance amount to the defendant No.1. In view of the above discussion, point No.1 is answered in the negative. Plaintiff has failed to establish that the plaintiff has paid sum of Rs.23,00,000/- as an advance amount.
20. Point Nos.2 and 3: Both the points are interlinked and taken for common discussion only to avoid repetition of facts.
21. The trial Court without considering the financial capacity of the plaintiff has recorded the finding that the plaintiff had paid advance consideration amount of Rs.23,00,000/-. Defendant has specifically denied in the
- 18 -
RFA No. 100104 of 2017written statement that plaintiff has no financial capacity to purchase the said land and defendant has not received advance sale consideration amount of Rs.23,00,000/-. In the course of cross examination of PW.1, PW1 has stated that except defendant none of the persons were present and plaintiff has paid the sale consideration amount of Rs.23,00,000/-. As observed amount of Rs.23,00,000/- is not a small amount. Further contended that plaintiff has not disclosed the said transaction in his income tax returns. The trial Court has accepted that the agreement of sale is registered and drawn presumption without looking into the contents of the agreement and has committed an error in holding that the plaintiff has paid Rs.23,00,000/- as a part sale consideration amount.
22. In view of the above discussion, we answer point No.2 in the negative and point No.3 in the affirmative.
23. Point No.4: We proceed to pass the following:
- 19 -
RFA No. 100104 of 2017 ORDER i) Appeal is allowed. ii) Consequently, Judgment and decree passed by the trial Court is hereby set aside and suit filed by the plaintiff is hereby dismissed. iii) No order as to the cost. Sd JUDGE Sd JUDGE PJ, HMB List No.: 1 Sl No.: 1