Karnataka High Court
Mr John D Souza S/O.D Souza vs Sri G Chandramma on 11 March, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.2311 OF 2011
BETWEEN:
MR. JOHN D' SOUZA
S/O D' SOUZA
AGED ABOUT 46 YEARS,
R/AT QUARTERS NO.4,
ST. JOHN HOSPITAL ROAD,
RESIDENTIAL AREA,
BENGALURU-560034.
REPRESENTED BY G.P.A.HOLDER
SRI. M.MAHADEVAIAH,
S/O SHIVANNA,
NO.59, K.M.C.,
VASANTH NAGARA,
PALACE ROAD,
BENGALURU-560052.
...APPELLANT
(BY SRI. H.R.ANANTHAKRISHNA MURTHY, ADVOCATE)
AND:
SRI. G.CHANDRAMMA
W/O H.V.GOPALAKRISHNA,
MAJOR,
R/AT. DEVANAHALLI TALUK,
DEVANAHALLI,
2
BENGALURU RURAL DISTRICT,
BENGALURU-562110.
...RESPONDENT
(RESPONDENT - SERVICE OF NOTICE HELD SUFFICIENT
VIDE ORDER DATED 30.08.2019)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 29.07.2011
PASSED IN R.A.NO.282/2010 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT-V, BANGALORE RURAL
DISTRICT, BANGALORE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
25.02.2010 PASSED IN O.S.NO.196/2007 ON THE FILE OF
CIVIL JUDGE (SR.DN.) AND JMFC, DEVANAHALLI.
THIS REGULAR SECOND APPEAL IS COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the unsuccessful plaintiff challenging the Judgment and Decree dated 25.02.2010 passed by the Civil Judge (Sr.Dn.) and JMFC, Devanahalli in OS No.196/2007 and the concurring Judgment and Decree of the First Appellate Court (Additional District and Sessions Judge, Fast Track Court, Bengaluru Rural District, Bengaluru) dated 3 29.07.2011 in RA No.282/2010. Both the Courts have dismissed the suit for specific performance of an agreement of sale dated 30.03.1994.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. The appellant is the plaintiff, while the respondent is the defendant before the Trial Court.
4. The plaintiff claimed that the defendant had executed an agreement of sale dated 30.04.1994 and had agreed to sell the suit properties for a total sale consideration of `6.00 lakhs and received a sum of `2.00 lakhs as part of the agreed sale consideration. The remaining sale consideration was to be paid at the time of execution and registration of a deed of absolute sale. It is stated that the possession of the suit property was to be delivered at the time of execution and registration of the deed of sale. The plaintiff claimed that he was 4 always ready and willing to perform his part of contract but the defendant went on postponing on one or the other pretext. The defendant was thereafter elected as a Legislator from Devanahalli Taluk to the Karnataka State Legislative Assembly and therefore, whenever the plaintiff requested the defendant to execute the sale deed, the defendant dodged to execute the sale deed. It is stated that the defendant again unsuccessfully contested the elections to the 11th Legislative Assembly and thereafter in the year 2004, he contested for the 12th Legislative Assembly. Whenever, the plaintiff approached the defendant, he was dodging the execution of the sale deed. Thus, the plaintiff approached the defendant during the last week of December, 2006 but the defendant assured the plaintiff that he was busy and that he would execute the sale deed in the month of January, 2007. When the plaintiff again met the defendant on 10.01.2007, the defendant refused to execute the sale deed and told the plaintiff 5 that the defendant is not interested to sell the suit properties at the sale consideration amount as agreed, in view of the escalation in the price of the land in and around Devanahalli area. The plaintiff therefore, caused a notice dated 23.01.2007 calling upon the defendant to receive the balance sale consideration and execute the sale deed. On the failure of the defendant to comply with the notice, the plaintiff filed the present suit.
5. The defendant though served with the notice, remained absent and hence, he was placed exparte. The Trial Court recorded the evidence of plaintiff as General Power of Attorney of PW1 and got marked Exs.P1 to P9. He also adduced the evidence of PWs.2 and 3 who were the attesting witnesses. The Trial Court considered the case and held that Ex.P2 which was the sale agreement evidenced that the time for conclusion of sale transaction would be six months 6 from the date of execution of the sale agreement. The Trial Court noticed that the plaintiff had paid a sum of `2.00 lakhs as part of the agreed sale consideration but dismissed the suit on the ground that the suit was not filed within the limitation period as prescribed under Article 54(1) of the Limitation Act. The plaintiff who had deposited the balance sale consideration in the suit, at the time of addressing final argument in the suit, was permitted to take back the amount that was deposited.
6. The plaintiff filed an appeal before the First Appellate Court in RA No.282/2010 on the file of Additional District Judge, Fast Track Court-V, Bengaluru Rural District. The First Appellate Court framed points for consideration and held that the time was the essence of the contract and in terms of the agreement of sale dated 30.04.1994 held that the defendant had not proved his readiness and willingness to perform his part of the contract. The First Appellate 7 Court also held that the plaintiff had failed to prove the reasons to file the suit within the time prescribed and therefore, dismissed the appeal and confirmed the Judgment and Decree of the Trial Court.
7. Feeling aggrieved by the aforesaid Judgment and Decree of the Trial Court and the First Appellate Court, the plaintiff has filed this regular second appeal.
8. It is seen that Ex.P2 was a registered agreement and the defendant has not chosen to dispute or deny the execution of Ex.P2. It is found from the Ex.P2 that the defendant had received a sum of `2.00 lakhs as part of the agreed sale consideration. It is also found in Ex.P2 that the defendant had promised to complete his part of the sale consideration within six months from the date of sale agreement. The plaintiff had not shown any circumstance which indicated that the defendant had impliedly or expressly enlarged the time for completion of the sale transaction. There is 8 nothing on record to show that the plaintiff was ever ready and willing to complete his part of the contract from the date of agreement till the date of filing of the suit. The first document that was generated at the end of the plaintiff was the notice of demand dated 23.01.2007. The plaintiff has also not disclosed any impediment which forbade him from filing the suit within the time prescribed. At any rate, the plaintiff has not attempted to pay the balance sale consideration to the defendant within the time prescribed and has not taken any steps of whatsoever nature to enforce his rights under the agreement of sale.
9. I do not find any irregularity or illegality in the appreciation of evidence by the Trial Court and the First Appellate Court and also the findings recorded by the Trial Court and the First Appellate Court that the plaintiff was never ready and willing to perform his part of contract. Hence, the Judgment and Decrees of the 9 Trial Court and the First Appellate Court rejecting the relief of specific performance is upheld.
10. However, the defendant not having chosen to contest the suit on merits, he has admitted the fact of execution of Ex.P2. He is bound in law to restore the benefit received from Ex.P2 from the plaintiff notwithstanding the fact that the agreement has become unenforceable and though the plaintiff is not entitled to the suit reliefs. The defendant is bound in law under Section 64 of the Indian Contract Act to restore the benefits that he has received from the plaintiff. Hence, the regular second appeal is allowed in part and the respondent / defendant is directed to refund a sum of `2.00 lakhs from the date of the suit, till the date of realization.
11. The plaintiff is also entitled to proportionate cost of the suit. Office is directed to draw the decree in terms of the direction given to the defendant to pay a 10 sum of `2.00 lakhs along with the interest at the rate of 6% per annum from the date of the suit, till the date of realization and proportionate cost.
Sd/-
JUDGE GH