Karnataka High Court
Shantabai W/O Sidaraya Harakari vs Rajendra Govind Daivdnya on 29 February, 2024
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NC: 2024:KHC-K:1847
RSA No. 7220 of 2009
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.7220 OF 2009 ()
BETWEEN:
1. SHANTABAI W/O SIDARAYA HARAKARI
AGE: MAJOR, OCC: H.H.WORK,
R/O KASAGERI ONI,
BIJAPUR-586101.
2. MURIGEMMA W/O SIDARAYA HARAKARI
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
3. YAMANAKKA W/O MAHADEV INCHAGERI
Digitally signed AGE: MAJOR, OCC: H.H.WORK,
by KHAJAAMEEN
L MALAGHAN R/O NEAR MICRO OFFICE,
Location: HIGH SIDDESHWAR COLONY,
COURT OF BAGALKOT ROAD,
KARNATAKA
BIJAPUR-586101.
4. KAMALA W/O SIDDU MANVE
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
5. RENUKA W/O MALLINATH NIMGBARAGI
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
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NC: 2024:KHC-K:1847
RSA No. 7220 of 2009
6. SRIDEVI W/O MAHADEV MAMADAPUR
AGE: MAJOR, OCC: H.H.WORK,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
7. JAVAHAR SIDARAYA HARAKARI
AGE: MAJOR, OCC: AGRICULTURE,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
8. VIVEKANAND SIDARAYA HARAKARI
AGE: MAJOR, OCC: STUDENT,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
9. BABU S/O SIDARAYA HARAKARI
AGE: MAJOR, OCC: STUDENT,
R/O BEHIND DR. BIDARI RESIDENCE,
BLDE HOSPITAL ROAD,
BIJAPUR-586101.
...APPELLANTS
(BY SRI UMESH V. MAMADAPUR, ADVOCATE)
AND:
RAJENDRA GOVIND DALVADYA
AGE: MAJOR, OCC: SERVICE,
R/O BIJAPUR-586101.
...RESPONDENT
(BY SRI AJAYAKUMAR A.K., ADVOCATE APPEARED FOR
SMT.RATNA N. SHIVAYOGIMATH, ADVOCATE
FOR C/RESPONDENT)
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NC: 2024:KHC-K:1847
RSA No. 7220 of 2009
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 13.07.2009 MADE IN R.A.NO.177/2005
PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE,
BIJAPUR AND CONFIRMING THE JUDGMENT AND DECREE
DATED:28-07-2005 PASSED BY LEARNED PRINCIPAL CIVIL
JUDGE (SR. DN.) BIJAPUR IN O.S.NO.221/1995, ALLOW THIS
APPEAL THEREBY DISMISSING THE SAID SUIT IN
O.S.NO.221/1995 FILED BY THE RESPONDENT BEFORE THE
TRIAL COURT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and the respondent.
02. This appeal is filed by the defendants aggrieved by the judgment and decree passed in O.S.No.221/1995 dated 28.07.2005 on the file of Prl. Civil Judge (Sr. Dn) Bijapur, which is confirmed by the Prl. District Judge in R.A.No.177/2005 dated 13.07.2009.
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NC: 2024:KHC-K:1847 RSA No. 7220 of 2009
03. The parties will be referred to as per their ranks before the Trial Court for the sake of convenience.
04. The factual matrix that is relevant for the purpose of this second regular appeal are that the plaintiff had filed a suit against the defendants for specific performance of contract of agreement of sale dated 14.05.1993 in respect of a site measuring 60 x 40 feet out of R.S.No.490/1B of Mahalabhagayat Bijapura. In the alternative he sought for refund of earnest money of Rs.25,000/- with interest at 18% p.a. It was contended that the deceased - Sidaraya, who was the owner of the entire land measuring 05 acres 33 guntas, had converted the said land into Non-Agricultural Land and was intending to form a layout as per the private survey. The said Sidaraya had executed an agreement of sale in favour of the plaintiff, agreeing to sell the above mentioned site which is falling in the said land for a consideration of Rs.50,000/-. A sum of Rs.25,000/- was paid as a earnest money. Later, the layout was got approved by the ADLR. -5-
NC: 2024:KHC-K:1847 RSA No. 7220 of 2009 Thereafter, even though the plaintiff was ready and willing to perform the part of the contract, the Sidaraya went on postponing the execution of the sale deed on the ground that he had to pay the development charges and has to get other developmental work of the plots done. During the first week of December - 1994, the plaintiff met the said Sidaraya along with Rs.25,000/-, but the said Sidaraya said that he would receive the amount later. Unfortunately, the said Sidaraya died on 19.12.1994 leaving behind the defendants. It is contended that the plaintiff was always ready and willing to perform his part of contract and it was only that the defendants who had refused to accept the same and execute the registered sale deed. Therefore, the plaintiff sought for specific performance of the contract of agreement of sale.
05. The defendants appeared before the Trial Court and filed the written statement contending that the entire agreement is false and frivolous and denying the execution -6- NC: 2024:KHC-K:1847 RSA No. 7220 of 2009 of the agreement as well as receipt of the earnest money of Rs.25,000/-. They have also denied the agreement of sale contending that the said agreement is false, forged and fabricated one. They are not liable to execute the sale deed. According to the defendant, the land was converted into non-agricultural use in January 1993 and the measurement was done on 06.04.1994 and 16.04.1994 by the ADLR. The plot numbers were given thereafter. Therefore, they sought for dismissal of the suit.
06. On the basis of the above pleadings, the Trial Court has framed the following issues :-
1. Whether plaintiff proves that the deceased Siddaraya has executed a deed of agreement of sale on 14.5.1993 In respect of Plot No.74 measuring 60' x 40' Sq.Ft out of RS No. 490/1B subsequently re- numbered as 490/C in favour of him (plaintiff) after receiving Rs.25,000/- as an earnest money from him (plaintiff) out of total consideration of Rs.50,000/-?-7-
NC: 2024:KHC-K:1847 RSA No. 7220 of 2009
2. Whether plaintiff proves that he is ready and willing to perform his part of contract?
3. Whether plaintiff further proves his lawful possession over the suit plot on the date of suit?
4. Whether plaintiff proves obstruction by the defendants?
5. Whether plaintiff is entitled to a decree of Specific Performance of contract? Or In the alternative whether the plaintiff is entitled to earnest money of Rs.25,000/- out of total consideration of Rs.50,000/- together with interest at the rate of 18% p.a. till realization of entire amount as prayed by him in para No.14 (c) of the plaint?
6. What order of decree?
07. After the evidence was led and after the arguments were heard, the Trial Court has answered the issues No.1, 2 and 5 in the affirmative and issues No.3 and 4 in the negative and the decreed the suit. -8-
NC: 2024:KHC-K:1847 RSA No. 7220 of 2009
08. Being aggrieved by the said judgment and decree, the defendants filed the R.A.No.177/2005 before the learned Prl. District Judge, Bijapur. After hearing the parties, the First Appellate Court has framed the following points for consideration :-
1. Whether the plaintiff has proved the execution of the agreement of sale dated 14.5.1993 by late Sidaraya in his favour in respect of suit property and passing of consideration of Rs.25,000/-?
2. Whether the plaintiff is entitled for the specific performance of contract?
3. Whether the trial Court was justified in decreeing the suit of the plaintiff?
4. Whether the impugned judgment and decree passed by the trial Court calls for interference from his Court?
5. What order?-9-
NC: 2024:KHC-K:1847 RSA No. 7220 of 2009
09. The First Appellate Court had answered the points No.1 to 3 in the affirmative and the point No.4 in the negative, by the impugned judgment confirming the judgment and decree passed by the Trial Court.
10. Being aggrieved by the concurrent findings of the Trial Court and the First Appellate Court, the defendants have approached this Court in the Regular Second Appeal.
11. On issuance of notice, the plaintiff has appeared through his counsel before this Court. While admitting this appeal, this Court has framed the following substantial question of law :-
"Whether both the Courts below were justified in granting a decree for specific performance ignoring the Provisions of Section 20 of specific Relief Act?"
12. The arguments of the learned counsel for the appellants and the respondent are heard.
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13. The learned counsel appearing for the appellants would submit that the Trial Court as well as the First Appellate Court have not addressed the mandatory requirement under Section 20 of the Specific Relief Act. It is submitted that the provisions of Section 20 of the Specific Relief Act, before the amendment, require the Courts to consider the judicial discretion to be exercised while granting the relief of specific performance. It is submitted that though both the Courts below had come to the conclusion that the agreement of sale has been proved by the plaintiff and the defendants are liable to pay the balance of consideration of amount of Rs.25,000/-, they should have considered as to why the judicial discretion has to be exercised in favour of the plaintiff.
14. It is submitted that agreement of sale at Ex.P.1 do not mention the plot number, but it was the plaint alone which mention the plot number as 74. In the agreement the boundaries are not mentioned. It is
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NC: 2024:KHC-K:1847 RSA No. 7220 of 2009 submitted that when the description of the plot was not mentioned in the agreement, the said fact should have been held in favour of the defendants in denying the specific performance. The Trial Court and the First Appellate Court would have ordered for refund of the earnest money. He further submitted that in the agreement itself it is mentioned that the deceased - Sidaraya has received a sum of Rs.25,000/- for the purpose of development of the layout. This clearly indicates that even prior to demarcation of the plots, the agreement was entered into. It is submitted that the provisions of Section 20 of the Specific Relief Act, as stood earlier were not properly considered by both the Courts.
15. Per contra, the learned counsel appearing for the plaintiff submits that at the most the agreement could be construed to be a contingent contract and at most it can be construed to be a vague contract. It is submitted that the defendant has received the earnest money from the several vendors. There were several such suits filed by the agreement holders against the said Sidaraya and the
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NC: 2024:KHC-K:1847 RSA No. 7220 of 2009 defendants. He submits that the Ex.D.3 shows that a similar suit was filed wherein the defendants were directed to execute the sale deed. It is submitted that non- mentioning of the description of the site in the agreement cannot be a ground to deny the specific performance. On this ground, the learned counsel for the plaintiff has defended the impugned judgment. He further submitted that there is absolutely no material on record to show which would require the judicial discretion to be exercised in favour of the defendants. The question of hardship, inadequate consideration or any such circumstances is not found either in the pleadings or in the evidence. Therefore, he submits that the appeal is bereft of any merits, as such the same may be dismissed. The learned counsel has also placed reliance on the decision the case of Gobind Ram vs. Gian Chand reported in 2000 (4) KCCR 2737 rendered by the Hon'ble Supreme Court to contend that to mitigate the hardship, the Hon'ble Supreme Court had directed that the purchaser should deposit the further amount of Rs.3,00,000/- in addition to the balance of the sale consideration amount.
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NC: 2024:KHC-K:1847 RSA No. 7220 of 2009
16. The perusal of the agreement at Ex.P.1 shows that it was entered into between the parties when the layout was not yet formed. The land owner has clearly mentioned that the layout is in formation stage and the purchaser would be given a site measuring 60 x 40 feet for a total consideration of Rs.50,000/-. The agreement also shows that a sum of Rs.25,000/- was paid as advance. The First Appellate Court as well as the Trial Court have categorically come to the conclusion that the said agreement of sale at Ex.P.1 has been proved. Therefore, the concurrent findings of fact by the Trial Court and the First Appellate Court, cannot be interfered with in the Regular Second Appeal, which is filed under Section 100 of CPC.
17. The perusal of the written statement of the defendants would show that except denial there is absolutely no mention about the hardship that would be meted with the defendants if the specific performance is ordered. So also, in the testimony of the PW.1, there is no
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NC: 2024:KHC-K:1847 RSA No. 7220 of 2009 mention about the hardship that would be faced by the defendants, if the specific performance is ordered. As such that could have been suggested to the PW.1 in the cross- examination. Thus, it is evident that there is absolutely no evidence which would show as to how the defendants would be put to a great hardship if the specific performance is ordered by the Court.
18. In the absence of any evidence in this regard, the Trial Court as well as the First Appellate Court were left with absolutely no evidence regarding the question of hardship or the circumstances which show the mitigating circumstances to the defendants. The circumstance left to both Courts was to take judicial note of certain facts. The perusal of both the judgments shows that there was no submission in this regard by learned counsel appearing for both the sides. Thus, it is evident that the question of hardship and the judicial discretion is urged for the first time before this Court. It is only the lapse of time which need to be considered. Evidently, the agreement was
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NC: 2024:KHC-K:1847 RSA No. 7220 of 2009 entered into between the parties on 14.05.1993. At the relevant point of time i.e., on 11.06.1993 another agreement was also entered into as per Ex.D.3 with one Mahantesh Patil. Therefore, it is evident that such agreements were executed by the deceased - Sidaraya during the year 1993. Now, this Regular Second Appeal is heard in the year 2024. The lapse of time and deprivation of the balance consideration amount to the defendants and the escalation of the price and the market value is also a circumstance, but the explanation to Section 20 (2) of the Specific Relief Act, reveals that inadequacy of the consideration is not a ground.
19. The judgment of the Hon'ble Supreme Court in the case of Gobind Ram vs. Gian Chand reported in 2000 (4) KCCR 2737, lays down that in order to render the justice, an additional sum of Rs.3,00,000/- was ordered to be paid by the purchaser. Further in the recent judgments, the Hon'ble Supreme Court has also noticed this aspect and certain reliefs were granted.
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20. Keeping in view the observations and the delay which has occurred, it is necessary to exercise the judicial discretion. The above said circumstances, even though the defendants are not entitled to seek for refund of the earnest money as contended, it would be proper to impose interest on the balance consideration amount.
21. The learned counsel appearing for both the sides plead no information as to whether the balance sale consideration amount of Rs.25,000/- has been deposited before the Trial Court or the First Appellate Court. Therefore, in view of the above discussion, the substantial question of law is answered accordingly in the negative. Hence, the following;
ORDER I. The appeal is dismissed.
II. The plaintiff is directed to pay the balance consideration amount of Rs.25,000/- to the defendants along with interest at the rate of 9% p.a. from the date of agreement till the date of deposit.
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NC: 2024:KHC-K:1847 RSA No. 7220 of 2009 III. If the defendants fail to execute the sale deed, the plaintiff is at liberty to get execute the sale deed by the process of the Court.
Sd/-
JUDGE KJJ List No.: 3 Sl No.: 2 CT:PK