Karnataka High Court
Kanaka House Building Co Operative ... vs Jawaramma on 1 March, 2010
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3.5T DAY OF" MARCH 2010 PRESENT THE HON'BLE MR. JUSTECE ..§'»i~; s<uMAR'»f 1' AND ' ~ * * THE HON'BLE MR. JUSTICEARA.yLI1'f$ITAGA"JRAj' REGULAR FIRST APPE'/§\--!_:vy°N.Q.6O'3/ZCSVOQH: BETWEEN: M Kanaka House Buiiding Co-operative Society, H No.32/32A, Siddappa 4St;'u_are,V Vanivilas Road, Mysore-570 OO4.__. ' » By its Secretary. 1 _ » Appellant (By Sri. AND: 2 A z 2 1. Jawaramma, v _.w/o Past;-taswamy G'o1AzV<;I_§_,y. Aged 5.5 'years'; 2. NDpage.;aAsa,oyR.A S/o 'PAuttyasw'a£11y"GVo'wda, Aged 39 ye,ars;'f..7 .1 are residi at .1E\!yo'.2V38O,*K§antharaj Urs Road, 'K.G.y 'Kopp_a}; Mysore. Respondents
~ Bayyareddy, Adv. for "--.Sr£. C.B. Srénivasan, Advocate forR1'& R2) This Regular First Appeal is fiied under Section 96 of Code of Civil Procedure against the Judgement and Decree dated 4.3.2003 passed in O.S.No.266/1997 on the file of the II Additional Civil Judge (Sr.Dn.) Mysore, partly decreeing thesuit for specific performance. "
This Reguiar First Appeal coming up for hearing' 3' N. KUMAR J., delivered the following. . "
'gment and ; :.-- --. ;.--.: r.-- --. r\/\~\ v~.,. :.. L313 . ThaS in ca fiiaiiitiffb Oppcafvfc-yalllst-_tIi'1' 3&5 Decree of the trial Court which has dVevc_l»i'ned to'gr:ant decree for specific performance.
2. For the purpose of con.ven-ier'ivC;ei,,g tl'i'e.'pa~--rt«ies are referred to as they are
3. The suit is an agricultural land bearing Sy, ., 1 acre 27 guntas, 35/2 direV'4.ggun'tas;"3V6/2 measuring 36 guntas and 36/3 measu..ring 1'a:cre"32r~.gLantas, in all measuring 6 acres 19 guntas,
7. f"s'i'tit.ated ii1.__Mad-agaiiaalli village, Yelwaia Hobii, Mysore taluk. 3'._:operati..\re»--Society registered under the Karnataka Co-operative \&\/ The case of the plaintiff is it is a House Building Co-- Societies Act. The society was formed with the sole object of acquiring lands for providing residential sites to its There are 530 members in the society. The society V' to be represented by its President and if of the society. The 15' defendant isl"-the.A_"oyvn'e;.~ schedule lands. The 2"" defen'dVa:ri't..V_istlie 15' " V defendant. The pfaidtiff Ieagmt th'e"2v'7.". defet'idant has got the khatha of the to his name.
Hence the 2"" defendant suit.
5. The 15' defendant agreed to sell the suit olaintiff society for a sum of Rs.5,82,750/-. 'T'rterate' was Rs.90,000/- per acre. Th_e_Aparti,e1§: have an agreement of sale dated 1.6;~1_2.'1:9,.93V. ITkhye.4Vag.reement was signed by the President of the itsociety~aVn-d.'thea"15t defendant. On the date of the agreement, V';pIaEtiqtiff 15' defendant a sum of Rs.50,000/-- as .1 by viiay of cheque bearing No.2435 drawn on Mysore V.'=oist.r;ct--:co4!epetative Central Bank Limited dated 16.12.1993. 1-daseiso agreed that within 20 days from the date of the t/ she could herself appear before the Land Acquisition Officer in person and on receipt of the full sale consideration ffiom"'g:rth'e4 plaintiff, she has to make a statement before him received full sale consideration and thatvsheihas if the lands being acquired by the plaintilffi ::'.A_A'T'he"15E' agreed for the same. Subsequenth,/,:,g:"'the " V Her promise gpt issued a legal the'ifilaifntiff on 27.8.1994 alleging that the inclination to act as per the teremgsohf the agreement dated 15.12.1993~iiiaygs5.:_ta--_nca_i_:Veid._an_d iflitil also stated that Rs.2.SO lakh9,..adv_a'n.c:e forfeited. After receipt of the notice; the the 15' defendant and informed him pay the consideration and complete th§§"contract;'v.V_.V%fVh'e_plaintiff and 15' defendant mutually agreed act _Vas_pefir"the terms of the agreement. .V 7. the basis of the mutual agreement, the plaintiff the Housing and Urban Development Department, inf.'=(§ove_rn"ment' of Karnataka for conversion of piaint schedule land 3""'r..__alon:gvv'itlh other lands from agricuitural zone to residential zone. E4/i H} piaintiff. Immediateiy, plaintiff approached the 13' defendant on ' 25.2.1997 and intimated her to give consent for aiienation of scheduie lands. Initiaiiy 15' defendant agreed, but so--4jfaQr_"~s:he'4 has not given the consent for alienation. Hence the .
8. The ptaintiff states that it is always ready.en_:de.,wi!.I:ing to "
perform its part of the contract as per te§fts"«o.f:4.ag--ree:ne4ttt..v, Plaintiff even as on date is ready ai";d_.wi|iAii'1g"'to per'f'or:r.n_i'ts of the contract. However, if the she is not wi||ing to execute any 7Cfi>ff'H'a'.t,tor_i_1ev,.thefpiaintiff wiii take the saie deed in its name._a,fter 9.c.o,9r'npl"eti.on{pf"the aiienation process. "f'.he'-- has been formed with an intention to prov'id_e" h,od'sinVg'._sit'e.s to its members, those who are ho,u.seiess..«.--j, accot1r'i--t,o_f___the non~cooperation of the defendant in'V'co»rr§Vp£»eting_'th*e,:co__ntract, not oniy the plaintiff, but also the i"».,_,memb'ers"of are facing iot of inconvenience. The Vffplaintiff isfhuready to pay Rs.2.00 iakhs being the cost of five sites .1 readyvdto give five sites to the defendant aiongwith the if'v-4"_3)ai--af.i.ic'e--Iconsideration. Therefore the ptaintiff filed a suit for ' -.__sp'ec:ifi'c' performance of the agreement of sale dated 16.12.1993 ix/1 and for a direction to the defendants to give consent for alienation of the schedule lands before the Depu.ty Commissioner, Mysore and in the alternative for amount paid i.e. a sum of Rs.2.SO lakhs with interestiaty annum from the date of agreement till thleflrelaii.:.atii_on'.' A A
9. After service of summons, the idei°'end'an'tSyV appearance and they have fited a'V._cl"e.taiied"' " L' They contend that they are not awareiwheftherlhthe:.piair.ntiff is a House Buiiding Co-operative'V:fiSoc-iceti/ii» rleoiistiered under the Karnataka Co--operative' ,Socie'ties'are not aware whether the wi'th the object of acquiring lands for providlitngyhresiVden't.ial.:s'ites to its members. They are not..awarve<5;thvait there'---iare___S3O members in the said society. They' deny_rthaVt'th'e:s*ociety is competent to be represented by its i"»aa,_XPVresicient'«inVV.al'l«--"_fthA'eVifaffairs of the society. Further it was lkgontendeda"tha'tVwithout the permission of the Joint Registrar of .1C:oo';23e.ratéve fiocieties, the suit filed by the plaintiff is not V."-T"_ma~i.ri.taui'na'b'le. They admit that the 15* defendant is the owner of T2"_f.,the~.sch'edule tands. The khatha of the schedule property stands now in the name of the 2"" defendant. They admit the agreement, the consideration agreed upon as well payment made in terms of the agreement. It though the defendant was ready and willing to p'e.rfo'rn1 V|:}A..e::l'vk.iD&3i'v'%[""
of the contract, it is the plaintiff who faiiéedll of the obligations. The 13' defendanét beiénglvlltihe ab.'s'3olVVuvte"
ef the schedule property has e*itere'd'l'i'i:Vn'to an saiie with the plaintiff on l6.l2i19C'§"3".,. The"'plVAa':i'n._ti»ff'has agreed to take the registered sale deed the date of agreement by paying" theiibalyaincelh amount before the Sub-Registrar' a'gre'ement and further as per the conditions' of the-..said4"aug'r'eernent, the plaintiff undertook to give 5 sites m'ei_alsurin'g_ 40 feet at free of cost. The plaintiff also agreedyif could not provide the said 5 sites, undertooir to -aWs:J_m of Rs.2.00 lakhs as alternative for those sites.~_:"l'--._giTh'e*«V"'p.i.ai'n'tiff in spite of repeated demands and also Xissuance tii l.eg:a|"n.otices dated 18.6.1994, 6.7.1994, 30.7.1994 4: has not complied with the terms and conditions goteidlliniilthe agreement. Though the 15' defendant is ready H""'i..__Vand:VVv\;ii'il'ilng to perform her part of the contract, the 15' defendant was forced to issue a final notice on 27.8.1994 terminating the said agreement and informed about the forfeiture of adv'a_nce I7 I. amount of Rs.2.50 lakhs paid by the piaintiff as per the terms and conditions of the agreement. The denied having agreed to execute GPA in"fa'v*ouA_r'.Qf'p!ain.fi'ff.7; The aiiegation that the defendant shouidfiiapoefar bef'¢.re~ the Acquisition Officer a . .fr5't..of fuiiV..con.si"c.ieraVtio'n and to give No Objection for the£3.overnrnent':acquiring't'he~scheduie property for the benefit of the's'ocietyé'iVs' they have aiso denied the avermenie;;ym%adesci;Waggreph;1;13, 14, 15, 16 and 17 of the states that time is the essence of has faiied to perform its part of the obliéation t'iio.'uig_hV.1S' defendant was ready and wiiiignyg g;ov..d§ischarge the-rfiohiyigation as per agreement. Hence the'vsuiit:Vf«i£ed biyA«the:'p,Iaintiff is Iiabie to dismissed. is-10...r-The.:*su'it fas} is brought is not maintainable for the :<_?As'i'rnpie rea.son_.that>there is no substantiai compliance of Section ' the Spiecific Relief Act. Thereafter in paragraph--17 the é*-.4_"defeh'd._a'n.t_ has set out their case. The 19' defendant has entered I5 will not be put to any hardship. There was no contract between the plaintiff and the defendants that the dereV.nd:ants would give consent for alienation of the suit schedule__la'n'd-.'£iefo're:4_ _ the Deputy Commissioner of Mysore. Therefore dismissal of the suit.
11. An additional iiwitten statem"e"iti._Came'«to--,be"f§'l«ad'=, subsequently. What is pleaded of .additionVa;l'"wi'iitten " ' statement is when inspite of,repeated:.re.q'u~ests an'd...re.r'hinders, the plaintiff did not perform its when there was no response to thré'ia<..1Ie9€.llll'n'ot3ijt;e.;wineii'-theplaintifr did not pay the balance sale amount of Rs.2.5O lakhs paid by the plaintiff and therefore the plaintiff is nd_t,entitled{ta any re'li'e'r7.:_ _____ '"12,x'.OinVVtVhe"_i»afti;réVsaid pleadings, the trial Court has framed Vthe following issues and one additional issue:
"f§':t.iiilyvhether the plaintiff proves that the defendant ' iiagreed to sell the suit schedule property for Rs.5,82,750/-- under an agreement dated I6 16.12.1993 and received advance amount of Rs.2,50,000/-? .
Whether the plaintiff further proves defendants agreed to accept Rs.2,00_,4'dO0/fl".'ijx i"
instead of 5 sites in a layout to he formed v--in]_the::
schedule property? _ 'L Whether the plaintiff proves is>.'a_lvv'ays if ready and willing to '»lp_e':formA"' his contract?
Whether the p|ainti;:ff'~~..proves_:tha_t.»:tAhe defendant has agreed to appear Ejefo-re' ii'andv"'aVgreed to admit the receipt asllstated in para 8 of if.he':Dl'aVin.t:;:'. 1: V "" "
Whethei; that the time is essevntial' _plaintiff has performed his part V. .
Whether thexV'd_efe.n'd.a_'i.'eté proves that the suit is pjarrecl by 'Li.;'friVi't'atio':1?
.A 'V-l/het'heri~ the defendants proves that the relief of ' = «'speci.fic l'per'formance cannot be granted for the if2:"reiasVons'_j~_stated in Para 18 of the written s«tate__men't?
Whether the plaintiff is entitled relief as prayed in lithe plaint?
'What order or decree?
ADDITIONAL ISSUE:
1. Whether the plaintiff is entitled for refund of'.
Rs.2,50,000/-- from the defendant with iriterest at 21% from the date of agreement?" if
13. On behalf of the plaintiff, plaintiff -- society has been examin.ed.___as PlW.5_l'l". V examined Kempalingaiah, the then plaintiff - society as PW--2. They have' which are marked as Ex.P1 to P14,_.._ defendants, Nagendra, the ltaieelnFeicariwirhed as DW--1 and they also examined,Vo~ipj'éj,iii:ité*iess:T~lj_\,j.:na'me":;Ni'ngappa as DW-2 and produced marked as E:-<.D1 to D18.
From the aforesaid lrn.at:e'ria:_l"'pri'firecord, the trial Court on appreciation' 'iweld issule. Nos.1 and 2 in the suit do not arise vfor.,clonsl"d:erati,on because due execution of the agreement of sale 'and ,tiri~e:"'--t,errrjs.--:'of sale and the payment received under sale agreement 'are not in dispute and therefore it is unnecessary ' ganyfinding. Therefore it proceeded on the footing that suitlag-reement is admitted, the consideration agreed upon lun:,d'erlv.--~the agreement is admitted, the payment of the K/..
consideration under the agreement as stipuiated is also admitted. Then it proceeded to consider the issue regapfrdjingg the readiness and wiliingness and came to the piaintiff has though deposed in the" evidence it with the baiance sale consideration, no before the Court to substantiate thel-r__.clain:._that ai.tv"a'i_ie4r_eie\_)§anVt points of time the plaintiff has the requisite funds to cgrrioiete the sale transaction. It aisof--._hfe,id' no agreement between the plaintiff and which the 15' defendant agreed and hand over the documentsmat the ptaintiff did not produce any substantiate his readiness and wiliingness Vfingxsov farpfféas for the payment of the ba_l.an_ce consideration____is: concerned, it held the piaintiff has faifled »to'pl'_ove_ itsteadiness and wiiiingness to perform its part of i=__the contract. aiso held that the plaintiff did not prove that v7Tt_Ahe-defendant'iha.ssagreed to appear before the LAO and agreed .1 receipt of the amount as stated in paragraph--8 of The defendant faiied to prove the time is the ' iv__VAesseVn'ce of the contract. Simiiarly, the defendant failed to prove I9 the suit is bared by time. The defendant has aiso failed to prove that the specific performance cannot be granted--«jfof"'--«t:h--eA reasons stated in paragraph--18 of the written.jstaterne-nt.;*-*1iit However in View of its finding that the..p.ia.i.ntiff."'i}ii'a's5ritot'""re'aoy-,_ and wiiiing to perform his part of the Con'tQraL'f,i"the1'pE_ainutiff's.i_i:'s.ufiif.i. for specific performance came to Vb.e""dismiAs'sed~and decree": for * ' refund of Rs.2.5G iakhs retceivedppi.dft€:ier"'--i:i1e ag'reern,.-é-nt with interest at 16% per annum 'from the suit tiil the entire amount is paid by the deferidjianityvas passed.
14. Aggrieved {by spazid :'=udgm'ent*a"nd~Decree of the trial Court, the plaintiff ' -i
15. In the aipoieaig afitapoiication is filed under Order--41 Riu:|e;27&A"fo:r p"r.od'tLi.ctionof"'additiona| evidence. The documents sottdht 'to.a.b'e pv'ii--oo';4i%Cred_j..are: (i) copy of the registration certificate Efshvowing'that tiheoiafinntiff ~ society is registered (ii) an extract of '~:t)ifie___cash bookparegister maintained by the piaintiff (iii) pages in issued by the bank showing the amount standing "to---.t'h¢v1c§'edit of the plaintiff at the relevant point of time. V 20
16. Learned counsel for the appellant assailing the impugned Judgment and Decree contended that the finding of the trial Couitthat the plaintiff did not pay the balance sale consideration_myi(ithin44t:the 3 agreed period and insisted on the defendant executingla attorney as well as handing over of original documents C_Or'lri'l'3¢l_'}/ tofthe-.A terms of the agreement of sale which clearly es,ta'hlishesAA'z<h,e was not ready and willing to perforrn_v:his_ part of 'thee-,cdntract"jand * it therefore he is not entitled to decree__ibr_ specific "performance is erroneous and contrary to the He contended that the balance sa_|e consideratie~n..iNa»s 'tia_blge at the time of execution of the sale A$::the::r_e 'i'au~i;dle for execution of the sale deed, the; defendant" vtrasicfeljlédii'upon to execute a power of attorney andifiharidlugoueif-.:t'rie»"otig-inal 3 documents and receive the balance sale consigdeiration before the Land Acquisition Officer giving"consent"»for'acqu"sition and the plaintiff at all points of time themfbakance sale consideration. In fact the additinna.I._reVi'd.ence' nowjproduced clearly establishes the readiness and Ev.VI"-w*illingneseon of the plaintiff in performing the agreement of iffherefore the finding of the trial Court requires to be interfered ':._'_:ai1.d .relie_f of specific performance has to be granted. Xx/i 21
17. Per contra, the iearned counsel for the respondent submits that the requirement of Section 16(c) is not complied with. There is no piea regarding readiness and willingness as contemplated u«n'd.e_r.th-ei aforesaid provision. Eventhough in the evidence ~ that the society was ready with the baiance sale cor':sidie.r.:atio'n, i:!jiey_u did not produce the cash book, pass bool<.__andotherZdoc-umen.tai=y.at evidence to substantiate the said claim.-jE'he plaintiff di<j"V'%'not_Vpay_T;the balance sale consideration within the agr.eed_vperi'od."_u:'V':The§ plaintiff insisted on the defendant executi-ng 'attorney as well as handing over of original documeritsg terms of the agreement of sale. The'pyla'i.ntifii_'Awas..'not«.,rea'dyV willing to perform his part of the cor:ltra'ct--., evidence is produced as rightly pointed' to show the readiness and willingness. Even» are now produced by way of additional evidence are ..looltedx'into, they also show that they are not savlvemconsideration. Admittedly, the balance sale consideration. "was_not paid. Conditions such as execution of :',i"p'ower of ayéttorneyyéjhanding over of original title deeds were insisted All of this will go to show that the piaintiff was not ready and 'i._:wil|_irig'_toperform his part of the contract. The trial Court on proper V. V-'iappreciagtion of the aforesaid oral and documentary evidence has VVif-~.rigghtlyV'held that the piaintiff has failed to prove his readiness and l/ 22 willingness and the said finding is based on legal evidence and no case for interference is made out.
18. in the light of the aforesaid facts and rival conte"n--tiolris,A4 the points that arise for our consideration in this ' under: n
(i) Whether the finding of the trial:"iiCoi_iArt was not ready and willing: to perform his_--:~*;':-wart ofigthe contract is justified in the fa_c_"t's.V_of thiscase'
(ii) Whether a case for aiigowirig_ 'the 'ap--p.li,ca.t§ion for additional evidence is made oiit'?-.__
(iii) What order? V PointNos.(i) and (ii)..:«'._j. _ . ._
19. The rifiat'eria1i..,.--';V€)n._:_reco_rd*-." discloses that the first defendant is; the.lAali3--soi.1ite 'o_w"n.er. of the schedule property. Plaintiff is a society.regilsterediii-nfder the Karnataka Co~operative Societies 3.959. .._Fflaintiff and 15' defendant entered into an ag'reernent toapurjchase agricuitural land to the extent of 6 acres 19 a't-irladaga haili village, Yelwala hobii, Mysore Vfjtaflvuk. its p_er~the terms of the agreement, Rs.50,000/- was on the date of the agreement of sale, another sum of was paid on 4.1.1994 within the time stipulated in 'theag-reement. Again a sum of Rs.1,50,000/- was paid within v F':
the time stipuiated on 12.2.1994. Ali the three payments are by way of cheques, which are duly encashed and acknowledged.
Rs.5,82,750/-, a sum of Rs.2,50,000/-- was. paid stipulations contained in the agreement of amount of Rs.3,32,750/- was agree_d"*~tp be"-paid. of 3 execution and registratieri orthe saiye.._d*e.ed~..,_v Si'x..r3jon:ths was the time stipulated for compietiiigthefsaie""trren'saction. The six months period werevto:"expire"on*:j{:5i_o;.§x9§vri}; evidence on record shows on awiegal notice issued as per Ex.P2 execute the sale deed in terms of the the piaintiff on his part is ready to perforrmhisy theiicontract viz., payment of the biaivance in fact in the said notice, it was mer¢iorje'd.eyth.du«gh..ithe_piaintiff approached the defendants eariier :""n._aVnd retruesteyd't-hyerrrrtyo hand over the originai title deeds, they yiehavey not resp'oyrid'ed to the request. Therefore 7 days time was tothe is' defendant to come and execute the saie deed receiye the baiance saie consideration, failing which they weremconstrained to take appropriate Iegai proceedings. The M/,.
Thus out of the totai sale 24 said notice was replied to by the counsei for the defendant as per Ex.P3 on 18.6.1994. The recitais therein shows the-.g15* defendant on the date of repiy was not at her gone on pilgrimage. It was pointed out that oniyy__aft.er's_crutiiny--.:
of the documents and being satisfied agreement was entered into and if plaintif4f'is"'n_ot ingpcysgsessioinlbfllH, the documents of title, xerox copies-bf» the be furnished. It is mentioned plaintiff made a request to the defendant"-toexlecutegahpiower of attorney to enable them to d;ea'i:««iw'i-th for which the 15' defendant didi'nol;."'afg're'e.. did not execute a separate agrieement;l'ag*reei;ig,fibpay-l Rs.2,00,000/--- in defauit of allotting 5 sites agreedto of the agreement, the saie could notyy.i_§fJ'e" compietedilandi not for the reasons mentioned by the._piai'n.t,iff ltheir-..notice. It was made clear even now the 15' defendant,was7"_re_ad:y'"V"and wiliing to perform her part of the vfrpcovntract oiiiy the event of the plaintiff agreeing to execute an agreeing to give 5 sites or in lieu of 5 sites and the 19' defendant wouid come and execute deed after return from the pilgrimage. In turn, the li/' fie plaintiff got issued a notice through his counsel as per Ex.P4 dated 4.7.1994 pointing out that original titie deeds areeinot handed over, power of attorney is not executed-..'r:0.r_i"'.j;f.%"._ defendant has appeared before the Land Acquisi.t_io:'ri~-..'Officer tot give consent for the award. In those;.circu'rrista_nces,_': deed could not be completed. fihereforetthey r,ei.t.er'ated"jthe'Va readiness and wiliir"ness to perforrn'i'a»i;:i.*ieir part._o:ftt'i*ie'contract, pay the baiance sale conside;r4'at._ionfanid: theteaie deed in their favour. A reply legai notice reiterating their ear£'i'er"~st'and:;._ .Ag.vain"vo:ne"'m.oer§eiegal notice was issued for which :a_ga.;in'_,a.'.'-sentkgwhich are as per E><.P6 and Ex.P7. notice. This correspondence anterior to the Vvsuit clearivgdeprnonstrates that both the parties were readyiaynd wi|ling'----tov__p_erform their part of the contract. But tiie'_hitc;h'--tAias..gl3iie'«pVlaéntiff couid not take a sale deed with respect i=__to the ag.ri.culturai._ land from the 15* defendant as it was hit by VV*T__tAhe-provis4§"'ons'V.of.'t.he Karnataka Land Reforms Act. Therefore .1~thevp~.,wa'in.tedtithe defendant either to execute a power of V.'of'tgatt-0t.r.=ne'*,{.»'hand over original title deeds, hand over possession of bu"-.g_the.:pVroperty and receive the balance consideration or they l-i/ of land use from agricultural use to residential use. After all this, when the plaintiff issued a legai notice calling defendant to execute the sale deed, he declined to doisoifi' _ in this background, the plaintiff was constr.ai_ned _-to'"f'iie'_ji:h'e~ " At any point of time prior to the suit,:'=thef_'_'defendant" dispute the capacity of the plaintif_f"---to ptaytthe sale consideration. The dispute was regar_d_in.g=tiandin"g.,oveVr5 of title deeds, execution of the power--of,_a3ttorn'e'y'Randy not that the plaintiff did not have the paIa,:i'ce».s5:lei'cQjn;!ldet§ti.¢n. Even in the written statement was contended was the plaintiff.was:no't;,,:ready to perform its part of the contractfg It 'stated that the plaintiff has no funds to pay"'t_hue "sa:'l.e44consideration. In support of theirA'contein'tVivo'n, the examined the Secretary as PW~«1 and, F'Ef:v€V3'S5dvE5Ti:t"E1S«.:PV\[_-2 to give evidence to the effect that the :7*t,_p|ainti'ff-- has requisite funds, they were ready and Vfwiiling to .u"pay"V.th'e"f balance sale consideration, the amount was .1 ~nVo't§'paid iibecautse of the defendant refusing to execute the power
--aTttoijneyAand hand over the originai title deeds. In fact there ' *-._is"no"serious cross~examination on this aspect by the defendant. Strangely the 1" defendant, a party to the agreement of saledid not step into the witness box. On the contrary, her s_on.::'wlas_ examined as DW--1. All that he has deposed contained in the agreement of sale. _».I.n__4fac§;'"if""h'i's cro'ss~.i,v examination is to be believed, he does notgkn'ow'in:iwh'os'e his mother has executed the agreeriltfein-t.,V_ whether. of the society or its President. in the evidence that there was no stipiuhi-atfionfi-.iifi. tag-reement of sale to execute the powgeripffg at:tor'ne:y; the plaintiff insisting on the was contrary to the terms, not take sale deed within the ti:m'e~i5tiVpu"lated'afndiitherefore the defendants have terminated the the amount paid under the ag4.7eemeD»t\%j//fljhg».t'TEre.fo're:t_h_er'e is no enforceable contract. The learned;trial J.udge,_o*--n__appreciation of the evidence on record has :7'a_hVeld not produce any documentary evidence lflto 'show uthgeira capacity to raise and pay the balance sale ,j.=co'rislder'ati_ony"'it is of the view that the plaintiff has not proved 'A"4"_~~its'-«readiness and wiiiingness. It is to be remembered that the hxv'~.._tri'alVCourt has recorded a finding that time is not the essence of Fit}! 29 the contract. It is not in dispute between the parties that__the consideration as stipulated in the agreement was paid in the society. Rs.5G,OOO/~ on the date of sum of Rs.5o,oo0/~ within 20 days _and_ Rs.1,50,000/~ within 30 days. The bavl'anc:e_'Considei"atioVn:"iw.a:§..: payable on the date of registrationsVffi:-!.v_thedateoVf'le:i<Ap._i:r'y~ofisbt months, there is no COI'TeSi30;."':i'3€:"iCEvf:i.-Eél;'a'li€'eifi The case of the plaintiff is that"they'iwieiiieu'"negéoti,3ting and the defendant has to exevcu:t'e.._a po'we'r over the title deeds as sa"lVe1.'deedWbecause of the bar under the Ka.rn--ata'ka"'l:E:;nd According to the defendants, i*pfa'intiff one more agreement agreeing to hancuzlioveyr VS lay--out to be formed and in default VtO'~--p:a_y___a:sum of Rs.2.00 lakhs, for which the plaingtiff:V'h*a.Vs n.oti.a'g.ree_d to. Therefore there is nothing to indicate record that'a'tg:.a'fiy'Vpoint of time the defendant was doubtful ltaabout theééllfinancial capacity of the piaintiff to pay the balance 2g*s.a4le'..Consid_eration and take the sale deed. That is why not only the 'earlier correspondence between the two and even in the V"-._writ.ten statement, there is no mention about the same and even Xx/if
3| That was a case where the trial Court had drawn an adverse inference for non--prodirction of the said documents. context, the Supreme Court said uniess the upon to produce those documents either..i3y..the if Court and unless the party declines to which are in his possession, the infefrvemce cannot be raised. Ii': the i,n.stantVA,easfe,_ such-,i.h,fe,rence of adverse possession is raisedf' 'fl_The__Vahov.e'ifohVservations in the aforesaid judgment That it is always not necessarv.r.tVof:--,p.i*_odu.c.e_'d..ocumlentarvVV'evidence to show the financial ,,.sa-pacitv' riioreso.' where it was not in dispute nor 'thy the defendant. To that extent, the judgimeint to this case. When the co.rvre_spoh_»di:3.nc'e ieadingw.to____the suit do not indicate that at any point ofV'time..tVhe 'defe_ndant felt that the plaintiff has no funds to :7"a,_pVay the ,i)'a--Iiancelf-cohA'sideration and even in the written statement flwhen it isu'hot'V.specificaiIy pleaded that the plaintiff is not ready A 2 'with..jtt.he'i3alance consideration and there was no serious cross-
ff'-4"_':e§ra«ri1in;atiofns of PWs.1 and 2 on this aspect, when the 15' h'V"v.__defe,n'd'ant did not step into the witness box and even the 2""
\t/ defendant who was examined as DW~1 do not specificaily state that the plaintiff did not have the balance sale considerat«ijo~n:'ja_n'd,' that is the reason why the sale consideration was i' it is not possible to hold that the p|airJtiff_.has_"'n'oi"fuj,nd.s .a:nci*-._ therefore he was not ready and willing to'*per_fo'rm contract. So now the additional proAdb.u!ce_d','--~which prima racie shows plaintiff has "-But. they, not produced the complete accountV:§?ook_;,3~:-,':fi"hég,':' produced the extract as on the da_t€'.:of___the:_"su:i't Dlaintiff was possessed of a matter to be proved subjectéhe defendants, subject to the defendant,' of cross--examining to the test the finawncyiyal .,caVpa.city" plaintiff prior to the date of thesaid or "s-u,b_s_ec;:uent to the date of account and the'r.efor,e*ithe.,_f3aid..:d"ocuments cannot be straightaway accepted :7R,_avnd acliepd"I.i'poVni«."."L:.. Iffiftlhe said document is proved in the manner bigno'-i,\in to i«4aw,"cVert4ain|y it would have impact on the final decision ,: 'o.fca'se, in those circumstances, we feel it is appropriate '--a'iloA\iug the appiication for production of additional evidence, the matter back to the trial Court for trial on that 33 particular issue giving opportunity to both the parties to adduce such evidence that it may deem fit and then to pass an accordance with law. That would meet the ends "
20. Yet another contention raisedvf-lay:-»._'_l':h'e that the defendant had entered int>o_V:VanV_agreement'b.:t'o\~~if,1pg..:ch'ase the house property with the-dsaie aiisum of i:zs.1o.oo iakhs. The defendantV:has'*pa§'i.d} rig-;i';»;.ooeiiea<hs to pw~2, the owner of the said 4p:ro_perty';' to perform its part of the contrra"ct_,V perform her part of the contracted, "th:eyre»fore the contract 'was cancelled, i:ze'i;.oo forfeited and therefore it is inequitable forlftghe V. grant decree for specific pe.rfo_rmanc5~e.v_l"'Ne h'a'vre..__t_..h§2. evidence of DW--2, a person who enVt'ered:V'i'nto a,_Vcont:r'act, a person who terminated the contract, a :7*,_pverson 'whohvasllforfehiyted the amount and he has deposed before 'V7.the'Court uthgatihe has no documents to the effect that he is the Aloft'-thelllproperty which is agreed to be sold to the 1"
'A'-éfdefe-ndant."A Without producing any evidence to show -title of the property and the actual payment of Rs.2.00 iakhs ll./'