Karnataka High Court
Shri. Pandurang S/O Dattatraya Dhotre vs Shri. Ravi S/O Vaijappa Siddannavar on 8 May, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
R.F.A.No.100230/2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF MAY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE SHRI. JUSTICE SURAJ GOVINDARAJ
R.F.A.No.100230/2017 (REC. OF MONEY)
BETWEEN:
SHRI PANDURANG
S/O. DATTATRAYA DHOTRE
AGED ABOUT 48 YEARS
OCC: BUSINESS & AGRICULTURE
R/AT PATVARDHAN LAYOUT
VADAGAON, BELGAVI ...APPELLANT
(BY SRI R.M.KULKARNI & SMT. HEMALEKHA KS., ADVOCATES)
AND:
SHRI RAVI
S/O. VAIJAPPA SIDDANNAVAR
AGED ABOUT 51 YEARS
OCC: BUSINESS
R/AT 2ND FLOOR, SIDDANNAVAR COMPLEX
OPPOSITE HOTEL SURVARNA MANDHIR
KHADE BAZAR, BELAGAVI- 590 001 ...RESPONDENT
(BY SRI SRIVATSA.S.HEGDE, ADVOCATE)
THIS APPEAL FILED U/S 96 OF THE CODE OF CIVIL
PROCEDURE, 1908 PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 07.04.2017 PASSED BY THE II
ADDITIONAL SENIOR CIVIL JUDGE & C.J.M., BELAGAVI IN
O.S.NO.230/2011.
R.F.A.No.100230/2017
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.01.2020, THIS DAY, SURAJ GOVINDARAJ
J., through video conference delivered the following:
JUDGMENT
1. This appeal of the defendant arises out of the judgment and decree dated 07.04.2017 in O.S.No.230/2011 passed by the II Additional Senior Civil Judge and C.J.M, Belagavi.
2. By the impugned judgment and decree, the trial Court has decreed the suit of the plaintiff for specific performance of an agreement of sale.
3. Appellant was the defendant and the respondent was the plaintiff before the trial Court. For the purpose of convenience, the parties will be henceforth referred to as per their rank before the trial Court.
4. The subject matter of the suit was land bearing R.S.No.22 (Old R.S.No.22/3) measuring 3 acres 10 guntas situated within the limits of Waghawade village, Taluka District, Belagavi. R.F.A.No.100230/2017 -3-
5. Case of the plaintiff, in brief, is as follows:
The defendant is the absolute owner and in possession of the suit property. For his family necessity, he agreed to sell the suit property in favour of the plaintiff for a consideration of Rs.34,00,000/-. On 31.05.2008 receiving Rs.11,50,000/- as earnest money in the presence of the witnesses, the defendant executed an agreement of sale. Further the Defendant received advance consideration Rs.2,50,000/- on 09.06.2008, Rs.5,00,000/-
on 02.07.2008, Rs.2,00,000/- on 09.01.2009 under due receipts. Thus, he received in all Rs.21,00,000/- as part sale consideration. The defendant went on dodging the execution of the sale deed. The defendant did not claim the notice dated 05.09.2011 sent by the plaintiff demanding the execution of the sale deed. Therefore, he is constrained to file the suit.R.F.A.No.100230/2017 -4-
6. The defendant filed the written statement denying the execution of the sale deed, receipt of the consideration, identity of the property, notice and readiness and willingness of the plaintiff to perform his part of the contract. He contended that the suit was barred by time, and in 2008 the market value of the property was crores of rupees.
7. Plaintiff amended the plaint to amend the number of the property from R.S.No.22/3 to R.S.No.22 (Old R.S.No.22/3). Therefore, the defendant filed an additional written statement.
8. In the additional written statement, the defendant admitted the execution of the agreement of sale, but again denied the identity of the property. He further contended that in respect of the very same property one Vijay Hanamant Patil filed O.S.No.246/2007 before the II Additional Civil Judge, Belagavi for specific performance. He alleged that in the said case, specific performance was denied and only refund of R.F.A.No.100230/2017 -5- earnest money was granted which was upheld up by the First Appellate Court and pending for consideration before this Court in R.S.A.No.100303/2015.
9. On the basis of such pleadings, the trial Court framed the following issues:
1. Does the plaintiff proves that the defendant agreed to sell the suit property for a total consideration of Rs.34 lacs and in this regard they have entered into an agreement of sale dt. 31.05.2008?
2. Does the plaintiff proves that he has paid to the defendant on the date of agreement advance consideration of Rs.11,50,000/-
and subsequently he has paid
Rs.2,50,000/- on 09.06.2008,
Rs.5,00,000/- on 02.07.2008 and
Rs.2,00,000/- on 09.01.2009?
3. Does the plaintiff prove that he was ever ready and willing to perform his part of the contract but it is the defendant who has committed the willful breach of the same?R.F.A.No.100230/2017 -6-
4. Is the suit barred by limitation?
5. Is the plaintiff entitled to the main relief of specific performance of contract?
6. Is the plaintiff entitled to the consequential relief of perpetual injunction as sought for?
7. What order or decree?
10. The parties adduced evidence. On behalf of plaintiff, PW.1 and PW.2 were examined and Ex.P1 to Ex.P11 were marked. Defendant got himself examined as DW.1 and on his behalf Ex.D1 to Ex.D10 were marked.
11. On hearing the parties, the trial Court by the impugned judgment decreed the suit for specific performance on the following grounds:
(i) Plaintiff has proved the execution of the agreement of sale Ex.P1 and the payment of advance money of Rs.21,00,000/-;R.F.A.No.100230/2017 -7-
(ii) Plaintiff has proved his readiness and willingness to perform his part of the contract;
(iii) The suit was filed in time;
(iv) Plaintiff has made out a case to exercise discretion to grant specific performance of the agreement of sale;
12. Aggrieved by the said judgment, the defendant has filed the above appeal. Reiterating the grounds of appeal, Smt.Hemalekha.K.S., learned counsel for the appellant submitted that the trial Court has failed to frame issue regarding the identity of the property and the findings of the trial Court with regard to the identity of the property and limitation are contrary to the evidence and law. She further submitted that the consideration under the agreement was unconscionably on a lower side and the judgment and decree of the trial court is contrary to Sections, 17, 18, 20 and 21 of the Specific Relief Act, 1963. She submits that the findings of the trial Court on R.F.A.No.100230/2017 -8- readiness and willingness on the part of the plaintiff is also unsustainable.
13. Sri Srivatsa S.Hedge, learned Counsel for the respondent/defendant sought to justify the impugned judgment and decree on the ground that the defendant himself has unequivocally admitted the agreement of sale. He further submits that defendant in the cross-examination admitted the receipts executed by him regarding the receipt of the above consideration on various dates. He further submits that the defendant's only contention was with regard to the identity of the property, which was apparently vexatious. Therefore, he seeks dismissal of the appeal.
14. Having regard to the rival contentions, the points that arise for consideration of this Court are:
(i) Whether the trial Court was justified in holding that the plaintiff has proved the execution of the agreement of sale and R.F.A.No.100230/2017 -9- receipt of part consideration of Rs.21,00,000/-?
(ii) Whether the finding of the Trial Court as regards the identity of the property is sustainable?
(iii) Whether the trial Court was justified in holding that the plaintiff has proved his readiness and willingness to perform his part of contract.?
(iv) Whether the trial Court was justified in holding that the suit was in time?
(v) Whether the trial Court was justified in decreeing the suit for specific performance?
REG. EXECUTION OF AGREEMENT OF SALE AND PART CONSIDERATION:
15. Though, in his first written statement, the defendant disputed the execution of the agreement of sale, in para 7 of his additional written statement, he clearly admitted the execution of the agreement of sale dated 31.05.2008 in favour of the plaintiff. The agreement of sale in question was marked as Ex.P1.
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16. The receipts regarding the payment of Rs.2,50,000/-, 5,00,000/-, 2,00,000/- were marked at Ex.P2 to Ex.P4. PW.1 the plaintiff and PW.2 the attesting witness deposed about the execution of Exhs.P1 to P4 and the receipt of the amount mentioned therein by the defendant. That was not disputed or dislodged in their cross-examination.
17. The defendant himself in para 6 of his affidavit filed in lieu of chief-examination unequivocally admitted that he has executed the agreement of sale dated 31.05.2008 in favour of the plaintiff. In his affidavit, he did not dispute Exhs.P2 to P4. In his cross- examination, he admitted the signatures on Exhs.P2 to P4. Therefore, by virtue of Section 58 of the Indian Evidence Act, 1872 and by virtue of admission in the pleadings, the execution of the agreement of sale stood proved. The consideration receipts Exhs.P2 to R.F.A.No.100230/2017 -11- P4 stood proved by the evidence of PW.1 and PW.2 and admission of DW.1.
REG. IDENTITY OF THE PROPERTY :
18. In Ex.P1 dated 31.05.2008, the subject matter of the agreement was described as RS No.22/3 measuring 3 acres 10 guntas situated in Waghawade Village and the boundaries of the properties were also mentioned.
The defendant in the written statement denied the identity of the property. The execution of Exs.P1 to P4 is already held proved.
19. Having admitted Ex.P1 and receiving a substantial amount of Rs.21,00,000/-, for the first time in his written statement filed on 17.01.2013, after about four years defendant disputed the identity of the property. The defendant admittedly purchased the said property under Ex.P10 registered sale deed dated 21.05.2008 accepting the identity of the property. The defendant in his cross-examination admitted that he R.F.A.No.100230/2017 -12- has not filed any suit contending that the boundaries of the property mentioned in Ex.P10 are wrong.
20. The defendant further admitted that under Ex.P10, the vendor had given the possession of the property to him and his name was entered in the records of rights to the said property. Such evidence goes to show that the defence of the identity of the property was invented after four years for the sake of the suit. Apart from that by virtue of Section 115 of the Indian Evidence Act, 1872, the defendant was estopped from denying the identity of the suit property.
21. So far as non-framing of the issue regarding identity of the property, the material on record is sufficient to show that the parties went to the trial with an understanding that the identity of the property is in issue and led their evidence. Therefore, even in the absence of framing of specific issue on that point, no prejudice is caused to the defendant. This view is supported by para 16.1 of the judgment of the R.F.A.No.100230/2017 -13- Supreme Court in Sri Gangai Vinayagar Temple and another vs. Meenakshi Anmal & Ors1.
REG. READINESS AND WILLINGNESS TO PERFORM PART OF CONTRACT:
22. In para 3 of the plaint, the plaintiff stated that he requested the defendant several times to receive the balance sale consideration and execute the sale deed which was not heeded to by the defendant. Therefore, he got issued legal notice on 05.09.2011. No doubt, the defendant disputed that fact in the written statement. As already held, the plaintiff paid substantial amount of Rs.21,00,000/- upto 09.01.2009 in part performance of contract. His statement in the chief-examination that he was ready and willing to perform his part of contract was not controverted in the cross-examination.
23. DW.1 in his affidavit filed in lieu of chief examination did not dispute the readiness and willingness on the part of the plaintiff to perform his part of contract or 1 (2015) 3 SCC 624 R.F.A.No.100230/2017 -14- the notice Ex.P7 dated 05.09.2011. In Ex.P7 also it was contended that though the plaintiff was ready and willing to perform his part of contract paying the balance amount, despite intimating that fact to the defendant, the defendant postponed the execution of the sale deed.
24. Before the trial Court, the plaintiff deposited Rs.13,00,000/- the balance sale consideration. Defendant in his cross-examination admitted that after filing the suit, the plaintiff has deposited Rs.13,00,000/- in the Court. Considering all these facts, the trial Court held that readiness and willingness on the part of the plaintiff to perform his part of contract was proved which is justifiable. REG. LIMITATION:
25. It was contended that the suit was barred by time. The agreement of sale was dated 31.05.2008. As per Article 54 of the Limitation Act, 1963, the time R.F.A.No.100230/2017 -15- prescribed for filing suit for specific performance of the contract is three years from the date fixed for performance, or if no such date is fixed, when the plaintiff has notice that the performance is refused.
26. As per the schedule of payment in Ex.P1, the last payment was due on 30.11.2008. On receiving the said amount, the defendant had to execute the sale deed. The suit was filed on 03.12.2011.
27. In Ex.P1, neither the date for performance was fixed nor the outer date for execution of sale deed after last instalment dated 30.11.2008 was fixed. Therefore, the second part of Article 54 i.e. the notice of refusal of performance applies.
28. The plaintiff's evidence that the defendant went on postponing the receipt of the balance amount and execution of the document was not disputed in his evidence. Therefore the cause of action to the plaintiff starts from date of service of Ex.P7 the notice dated R.F.A.No.100230/2017 -16- 05.09.2011. The suit was filed within three years from that date. Therefore, the trial Court was justified in holding that the suit was on time.
REG. GRANTING DECREE FOR SPECIFIC PERFORMANCE:
29. Section 20 of the Specific Relief Act, 1963 ('the Act' for short) governs the grant of a decree for specific performance. Section 20(1) of the Act states that the jurisdiction of the Court to grant a decree for specific performance is discretionary and discretion shall be guided by the judicial principles and not arbitrarily.
30. Section 20(2) of the Act specifies the category of the cases in which the discretion to grant a decree for specific performance may not be exercised. Section 20(2)(a) of the Act speaks of the cases which give the plaintiff an unfair advantage over the defendant.
Section 20(2)(b) of the Act speaks about the cases which cause hardship to the defendant which he had not foreseen at the time of the agreement. Section R.F.A.No.100230/2017 -17- 20(2)(c) of the Act speaks of the cases where granting the specific performance is inequitable to the defendant.
31. The defendant did not plead any of the aforesaid grounds to bring his case under Section 20(2) of the Act. His only contention was that the property was worth crores of rupees. Thereby he meant inadequacy of the consideration. Defendant did not lead any evidence to show that the consideration was inadequate much less unconscionable. Explanation I to Section 20(2) of the Act states that mere inadequacy of the consideration does not constitute an unfair advantage within the meaning of Clause (a) or hardship meant under clause (b) of the Act.
32. Explanation-II states that hardship contemplated under Section 20(2)(b) of the Act is one which resulted from the act of the plaintiff and not of the defendant.
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33. Section 20(3) of the Act states that it is proper to exercise discretion to grant a decree of specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of the contract.
34. In his written statement, the defendant did not plead the grounds of unfair advantage, hardship or inequity to him. Plaintiff parted with a huge sum of Rs.21,00,000/- by 09.01.2009 and deposited Rs.13,00,000/- before the trial Court by filing the suit and prosecuted the litigation up to 07.04.2017 for almost for about ten years before the trial Court. Thereby, he had done substantial acts as contemplated under Section 20(3) of the Act. Therefore, rejecting the decree for specific performance was causing loss to him.
35. Considering all such aspects, the trial court rightly exercised the discretion to grant decree for specific performance. This Court does not find any illegality or R.F.A.No.100230/2017 -19- infirmity in the judgment of the trial Court warranting interference of this Court. Therefore, the appeal is dismissed with costs through out.
Sd/-
JUDGE Sd/-
JUDGE KSR