Karnataka High Court
Shri B R Rangaswamy vs Dr V A Pinto on 28 November, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL No.1791/2023 (SP)
BETWEEN:
1. SHRI B.R. RANGASWAMY
SINCE DECEASED BY LR's.
1(a) SMT. R. VIJAYALAKSHMI,
W/O LATE B.R. RANGASWAMY,
AGED 70 YEARS,
1(b) MS. B.R. SUPRIYA
D/O LATE B.R. RANGASWAMY,
AGED ABOUT 51 YEARS,
1(c) MR. B.R. DILIP KUMAR
S/O. LATE B.R. RANGASWAMY,
AGED ABOUT 49 YEARS,
1(d) MRS. SHUBHA ROMESH PATEL
D/O LATE B.R. RANGASWAMY,
W/O MR. ROMESH VIJAY PATEL,
AGED 47 YEARS,
RESIDING AT NO.191,
3RD CROSS, 18TH MAIN ROAD,
6TH BLOCK, KORAMANGALA,
BENGALURU-560095.
1(e) MS. B.R. KAVITHA
D/O LATE B.R. RANGASWAMY,
AGED ABOUT 44 YEARS,
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1(f) MR. B.R. KASTURI RANGAIAH
S/O LATE B.R. RANGASWAMY,
AGED ABOUT 43 YEARS,
NOS.1(a), (b), (d) TO (f) ARE REPRESENTED BY
THEIR POWER OF ATTORNEY HOLDER
B.R. DILIP KUMAR,
APPELLANT 1(c) HEREIN,
APPELLANT NOS.1(a) TO (c), (e) & (f)
ARE ALL RESIDING AT NO.101,
RAILWAY PARALLEL ROAD,
KUMARA PARK WEST,
BENGALURU-560020.
...APPELLANTS
(BY SRI ARUN B.M., ADVOCATE)
AND:
1. DR. V.A. PINTO
AGED 84 YEARS,
S/O LATE B. PINTO,
2. DR. (MRS) P. PINTO
AGED 79 YEARS,
W/O DR. V.A. PINTO,
BOTH ARE RESIDING AT NO.37/2,
BERLIE STREET, LANGFORD TOWN,
BENGALURU-560025.
3. MR. J.T. PINTO
AGED 74 YEARS,
S/O LATE B. PINTO,
RESIDING AT NO.30,
MAGRATH ROAD,
BENGALURU-560025.
4. MRS. BASHEERA JAN
W/O LATE D. SYED YOUNUS,
AGED 75 YEARS,
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5. MRS. AFROSE BANU
D/O LATE D. SYED YOUNUS,
AGED 57 YEARS,
6. MRS. SABEENA BANU
D/O LATE D. SYED YOUNUS,
AGED 54 YEARS,
7. MRS. HUMERA BANU
D/O LATE D. SYED YOUNUS,
AGED 50 YEARS,
8. MR. SYED SUHAIL
S/O LATE D. SYED YOUNUS,
AGED 55 YEARS,
ALL ARE RESIDING AT NO.18/1,
5TH CROSS, JAIBHARATHI NAGAR,
BANGALORE-560033.
...RESPONDENTS
(BY SRI K.G. RAGHAVAN, SENIOR COUNSEL FOR
SRI SYED KHAMRUDDIN, ADVOCATE FOR R-1 TO R-3;
NOTICES TO R-4 TO R-8 ARE DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 READWITH ORDER 41
RULE 1 OF THE OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 23.03.2023 PASSED IN O.S.NO.25242/2009 ON THE FILE OF
THE XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL, BANGALORE, DECREEING THE SUIT FOR SPECIFIC
PERFORMANCE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29/10/2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
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CAV JUDGMENT
The present regular first appeal is directed against the judgment and decree in OS No.25242/2009 dated 23.03.2023 on the file of XXVII Additional City Civil Judge at Mayohall Unit (CCH 29), Bangalore, (hereinafter referred to as "trial Court' for short). By the judgment and decree, the trial Court decreed the suit seeking specific performance of the agreement dated 12.02.1999 and directed the defendants to execute an absolute sale deed in respect of 'A' schedule property in favour of the plaintiffs. BRIEF FACTS
2. The suit property consists of a land measuring 31,049 square feet situated at Richmond Road/Kingston Road, Bengaluru, originally belonging to Late Syed Younus. The said Syed Younus entered into multiple agreements of sale. The agreement of sale dated 11.07.1975 was in favour of one E.P Varunny later assigned to the plaintiff. On 04.05.1978 and 15.11.1978 the agreement was executed in favour of the plaintiffs. Further on 23.08.1978, agreement of -5- sale is said to have been executed in favour of defendant No.1/appellant-B.R.Rangaswamy. The appellant/defendant No.1 had filed OS No.8443/1980 for specific performance based on his agreement dated 23.08.1978. The plaintiff in the present suit was also the defendant No.2 along with Syed Younus, who claimed his right under the agreement dated 11.07.1975. The said suit was dismissed on 15.04.1989 holding that the agreement dated 11.07.1975 in favour of the plaintiff was earliest valid agreement. The appellants/defendant No.1 in the said suit OS No.8443/1980 preferred RFA No.374/1989 before this Court. During the pendency of the First Appeal, on 12.02.1999, the plaintiffs and the appellant executed Ex. P.5, a document titled "Terms of Compromise", signed by the parties and counsel. Under Ex. P.5, the property was proposed to be divided into 13,000 square feet (front portion to the plaintiffs) and 18049 square feet (rare portion to the appellant herein/defendant and further the parties were to share the total consideration of ` 20,00,000/-. Ex. P.5 was not filed during the hearing of -6- RFA No.374/1989. The RFA came to be allowed in favour of the appellant by the judgment dated 05.03.1999. The present plaintiffs and the vendor Syed Younus challenged the judgment in RFA No.374/1989 before the Apex Court. The SLP was dismissed in 2006, thereby affirming the judgment and decree of this Court in RFA No.374/1989. Even before the Apex Court, Ex. P.5 was not produced or relied upon.
3. After dismissal of the SLPs, the plaintiffs issued a legal notice-Ex. P.8 asserting rights under Ex. P.5-the agreement dated 12.02.1999. The present suit is filed seeking specific performance of Ex. P.5. The trial Court, by the judgment and decree dated 23.03.2023 held that Ex. P.5 is a concluded contract and decreed specific performance in favour of the plaintiffs, aggrieved by which the appellant has preferred the present Regular First Appeal seeking to set aside the judgment and decree of the trial Court.
4. The trial Court by the judgment and decree held that the plaintiffs proved Ex. P.5 dated 12.02.1999 as a -7- genuine and valid document. The Court observed that the said document contained clear reciprocal obligations and rejected the contention of the defendant, that Ex. P.5 was not speculative or conditional and therefore held that it is a concluded contract, not a mere agreement. Further the Court observed that abandonment was not proved by the defendant, applied adverse inference under Section 114 (g) of the Indian Evidence Act, 1872 (for short 'the Act, 1872'). Since the defendant did not enter the witness box to explain his conduct, the Court accepted the plaintiffs case that their subsequent action, issuing notices, filing suits, shows readiness to perform and consistent with the enforcement and not waiver. By the judgment and decree, decreed the suit for specific performance directing the defendant to execute the sale deed in favour of the plaintiffs for 13,000 square feet, on receipt of the remaining consideration.
5. Heard Sri B.M.Arun, learned counsel appearing for the appellants, learned Senior Counsel Sri K.G. Raghavan for respondent Nos. 1 to 3 and perused the material on record. -8-
6. Learned counsel appearing for the appellants would contend that,
(i) the alleged Ex. P.5 is a contract styled as "Terms of Compromise", and is speculative in nature. The cause title of Ex. P.5 was that of RFA and cannot go beyond the RFA. It was never acted upon nor submitted before the Court in the earlier proceedings. Being speculative and contrary to the settled law, it lacks any legal sanctity and cannot be enforced by way of specific performance. Reliance is placed on United Bank of India vs. Ramdas Mahadeo Prashad and Others1(Ramdas) to contend that a memorandum not submitted to the Court cannot be acted upon and is not a concluded contract to be enforceable in law.
(ii) The plaintiffs themselves abandoned the alleged contract during the pendency of RFA No.374/1989, the compromise was never placed before the High Court. Even before the vendor-Syed Younus, could prefer 1 (2004) 1 SCC 252 -9- appeal against RFA No.374/1989, the plaintiffs preferred SLP. Even in the SLP before the Apex Court, there was no whisper about this so-called concluded agreement. The plaintiffs, having pursued remedies independently and not disclosed the compromise, must be deemed to have abandoned the same. Reliance is placed on the decision of the Apex Court in the case of Mayawanti vs Kaushalya Devi,2 (Mayawanti), to support the proposition that where there is no concluded contract, or where parties themselves do not act upon it, there is no enforceable right of specific performance.
(iii) The present suit is barred by statutory restrictions.
Having failed in the earlier proceedings, the plaintiffs cannot revive stale claims under the guise of enforcing a compromise. The matter has attained finality by virtue of dismissal of SLPs in 2006. The suit is also hit by principles of res judicata and constructive res 2 (1990) 3 SCC 1
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judicata. Reliance is placed on Rangammal vs Kuppuswami and Another3 (Rangammal), which clarifies that the burden of proof lies on the plaintiff to establish validity and enforceability of a contract and in the absence of such proof, the claim fails.
(iv) Learned counsel emphasizes on para 8 of the agreement Ex. P.5, which says that the prayer is in RFA and not beyond that, signed by the advocates.
(v) The genesis of the present litigation is traceable solely to the legal notice issued - Ex. P.8. The notice itself discloses that the plaintiffs were aware of the finality of the earlier proceedings, yet attempted to enforce an abandoned and speculative contract and therefore the cause of action is illusory and suit is not maintainable and that the suit is a misuse of process, deserves dismissal.
7. Per contra, learned Senior Counsel for the respondent Nos.1 to 3 would argue that, 3 (2011) 12 SCC 220
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(i) The original vendor, late Syed Younus had admittedly executed several agreements of sale with different parties. The appellant had filed OS No.8443/1980 for specific performance based on his agreement dated 23.08.1978. The trial Court by judgment dated 15.04.1989 dismissed the suit. It held that 11.07.1975 agreement, assigned to the respondent Nos.1 to 3 was the earliest valid contract, whereas the appellant's agreement was fabricated on an old stamp paper, hence unenforceable. That Syed Younus himself admitted the plaintiffs' agreements and denied the genuineness of the appellant's agreement.
(ii) When the appellant preferred RFA No.374/1989, he was uncertain of success, to secure his position, he voluntarily approached the respondent Nos.1 to 3 with a proposal of compromise; (a) If he succeeded property should be shared equally. (b) If respondent Nos.1 to 3 succeeded they should share with him likewise. Thus, on 12.02.1999, during pendency of the RFA both sides
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reduced to writing a compromise agreement - (A) respondent Nos.1 to 3 would take front portion 13,000 square feet. (B) appellant would retain the rear portion 18,000 square feet. This document was written in appellant's own hand and signed by the counsel and the effect of the compromise was not speculative, but a concluded contract signed by the parties and their counsels. It was a binding arrangement voluntarily entered into, independent of the outcome of litigation. The appellant, having signed and taken benefit of this arrangement is now estopped from denying its existence.
(iii) The respondent Nos.1 to 3 have always been ready and willing to perform their part including payment of consideration and they have issued legal notice-Ex. P.8, deposited the money in the Court. The appellant, however, is now trying to retract from his own compromise.
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(iv) The appellant's agreement with Syed Younus was never genuine, whereas, the 1978 agreement in favour of the respondent Nos.1 to 3 were genuine and prior in time. The 12.02.1999 compromise was concluded contract, voluntarily executed by the appellant when he feared losing the appeal.
(v) Reliance is placed on the following judgments:
1. Namburi Basava Subrahmanyam vs Alapati Hymavathi and Others4 (Namburi)
2. Tamboli Ramanlal Motilal (Dead) by L.Rs vs. Ghanchi Chimanlal Keshavlal (Dead) by L.Rs and Another5 (Tamboli Ramanlal)
3. Trimex International FZE Ltd. Dubai vs. Vedanta Aluminum Ltd. India6 (Trimex)
4. KSL & Industries Ltd. vs. National Textiles Corporation Ltd. 20127 (KSL)
5. Mayawanti (supra) 4 (1996) 9 SCC 295 5 1993 Supp (1) SCC 295 6 (2010) 3 SCC 1 7 2012 SCC OnLine Del 4189
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6. Kishandas Murlimal and Others vs. Doongermal Bachumal Futnani and Others8 (Kishandas Murlimal)
7. Hindustan Motors Ltd. vs. Amritpal Singh Nayar and Anr.9 (Hindustan Motors)
8. Pulavarthi Venkata Subba Rao and Others vs. Valluri Jagannadha Rao and Others10 (Pulavarthi Venkata Subba Rao)
9. Baldevdas Shivlal and Another vs. Filmistan Distributors (India) P. Ltd. And Others11 (Baldevdas Shivlal)
10. Uphras Lapasam and Another vs. Ka Esiboll Lyngdoh and Others12 (Uphras Lapasam)
11. Iswar Bhai C Patel v Harihar Behera and Another13 (Iswar Bhai)
12. Muddasani Venkata Narsaiah (dead) through L.Rs vs. Muddasani Sarojana14 (Muddasani Venkata Narsaiah) 8 (1954) 2 SCC 728 9 2002(64) DRJ 394 10 1963 SCC OnLine SC 144 11 (1969) 2 SCC 201 12 1985 SCC OnLine Gau 7 13 (1999) 3 SCC 457 14 (2016) 12 SCC 288
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13. Vidhyadhar vs. Manikrao and Another15 (Vidhyadhar)
14. Life Insurance Corporation of India and Another vs. Ram Pal Singh Bisen16 (LIC)
15. M. Venkataramana Hebbar vs. M. Rajagopal Hebbar and Others17 (Venkataramana Hebbar)
16. Kalpraj Dharamshi and Another vs. Kotak Investment Advisors Limited And Anr18 (Kalpraj Dharamshi)
17. Wadhwa Groups Holdings Private Limited vs. Homi Pheroze Ghandhy and Another19 (Wadhwa Groups)
18. P Dasa Muni Reddy vs. P Appa Rao20 (Dasa Muni Reddy)
19. Kanchan Udyog Limited vs. United Spirits Limited21 (Kanchan Udyog) 15 (1999) 3 SCC 753 16 (2010) 4 SCC 491 17 (2007) 6 SCC 401 18 (2021) 10 SCC 401 19 2019 SCC OnLine Bom 4083 20 (1974) 2 SCC 725 21 (2017) 8 SCC 237
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20. Godrej and Boyce Manufacturing Company Limited and Anr. vs. Municpal Corporation of Greater Mumbai and Others 22 (Godrej and Boyce)
21. Sha Mulchand and Company Ltd. vs. Jawahar Mills Limited Salem23 (Sha Mulchand)
22. Gaddipati Divija and Another vs. Pathuri Samrajyam and Others24 (Gaddipati Divija)
8. Having heard the learned counsel for the parties, the point that arises for consideration is, "Whether the trial Court was justified in treating Ex. P.5 as a valid, concluded and enforceable contract and whether the judgment and decree of the trial Court warrants any interference?"
9. Ex. P.5 is the terms of compromise dated 12.02.1999, which was entered during the pendency of RFA No.374/1989. The terms of the compromise under Ex. P.5 was not placed before the Court during the pendency of RFA No.374/1989 and neither was it disclosed before the Apex 22 (2023) 15 SCC 110 23 (1952) 2 SCC 674 24 2023 SCC OnLine SC 442
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Court in the SLPs, filed by both the plaintiffs and the vendor Syed Younus. Under Order XXIII Rule 3 CPC, the compromise requires to be presented and recorded by the Court to have a binding legal effect. A private arrangement, not brought to the Court during the pendency of proceedings cannot alter judicial outcomes. The Apex Court in the case of Ramdas (supra) held at para Nos.6, 7, 8 as under :
"6. A fascicule reading of the conditions stipulated in the MOU clearly posits that the parties were to comply with the conditions stipulated by taking the following actions:
(a) to withdraw the suit filed by them against the appellant;
(b) to pay the guarantee liability of Rs 2.33 lakhs;
and
(c) to file a compromise petition in terms of MOU before an appropriate court.
7. Undisputedly, the respondents did not withdraw the suit filed by them against United Bank of India, which is the condition precedent stipulated in clause (1) of the MOU. The respondents also did not pay the guarantee liability of Rs.2.33 lakhs. No compromise petition was filed before an appropriate court. Therefore, by no stretch of imagination can it be
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said that the terms and conditions stipulated in the MOU had been complied with and acted upon by the parties. Apart from what has been said, subsequent to the MOU there was also a lot of correspondence between the parties by exchanging letters giving offers and counter-offers, as would be revealed in the letters dated 16-6-1994, 23-12-1994, 12-6-1995, 15- 6-1995 and 19-6-1995. All these correspondences would go to show that the parties failed to arrive at a consensus even on what were the terms of the MOU. Thus, it is clear that there was no concluded contract nor was there any novation.
8. As already noticed, no compromise petition was also filed in an appropriate court in terms of Order 23 Rule 3 of the Civil Procedure Code."
10. The compromise was conditional and speculative. The terms of the Agreement is culled out as under :
"IN THE HIGH COURT OF KARNATAKA AT BANGALORE R.F.A. No.374/1989 Between:
Sri B. R. Rangaswamy Appellant And:
Sri Syed Younus & others Respondents
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Terms of Compromise between Appellant and Respondents 2 to 4 Sri Syed Younus, the first Respondent and his Counsel did not participate in the discussions hold for the compromise in the above appeal. In spite of inviting the counsel for the Ist respondent, he chose to remain absent on 8.2.1999 also.
2. However, discussions were held between the Appellant and respondents 2 and 4, Dr.V.A.Pinto and Sri J.T.Pinto in the presence of their respective counsel on the last occasion on 8.2.1999.
3. The appellant on the one side and the respondents 2 to 4 on the other side are agreeable in general to settle their rival claims, each giving up the claim to a portion of the suit schedule property in favour of the other as detailed below.
4. The total area of the immovable property which is the subject matter of the above appeal is 31,049 Sq.ft which is a corner plot facing on the North, Richmond Road, and on the East, Kingston Road (The property is tenanted as on today).
5. In consideration of the first respondent being keen to sell the suit schedule property to the respondents 2 to 4 even though he agreed that he had entered into an agreement to sell with the appellant in respect of the to the suit schedule property, the
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appellant on one side and the respondents 2 to 4 on the other have mutually agreed to divide the suit schedule property into two portions and to purchase one portion each as follows:-
(a) The front portion of the suit schedule property facing Richmond Road measuring 13,000 Sq.ft shall constitute one portion which is fully described in the schedule A hereto and hereinafter referred to as Schedule 'A' property.
(b) The remaining rear portion of the suit schedule property facing Kingston Road measuring more or less 18,049 Sq.ft shall constitute another portion which is fully described in the schedule 'B' hereto and hereinafter referred to as schedule B property.
6.(a) The appellant on one side and the respondents 2 to 4 on the other side have mutually agreed that the respondents 2 to 4 shall give up and they do hereby give up their claim to Schedule B property in favour of the appellant and restrict their claim only to the schedule 'A' property.
(b) They have further mutually agreed that the appellant shall give up and he does hereby give up his claim to schedule A property in favour of the respondents 2 to 4 and he restricts his claim only to schedule B'property.
7. Though the first respondent did not participate in the discussion held for compromise, as the dispute
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is settled between the appellant on one side and the respondents 2 to 4 on the other side, both the appellant and respondents 2 to 4 have agreed as a token of good will and friendly gesture to pay to the first defendant a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs) including the price of the property, sharing the said amount equally between them.
8. Thus appellant shall be entitled to the specific performance of the agreement dated 23.8.1978 by the 1st respondent in respect of the schedule 'B' property which is a portion of suit schedule property measuring more or less 18,049 Sq.ft for the proportionate price (5,00,000 X 18,049) / 31,049 = Rs.2,90,590 by paying the balance sum of Rs.2,80,590 after deducting the advance of Rs.10,000/-.
9. Similarly, the respondents 2 to 4 shall be entitled to specific performance of the agreement dated 15.11.1978 with prior agreements in respect of the Schedule 'A' property which is a portion of the suit schedule property measuring 13,000 sq.ft for the proportionate price (5,70,000 × 13,000) / 31,049 = Rs.2,38,680/- by paying the balance amount of Rs.2,03,680/- deducting the advance of Rs.35,000/-.
10. However, as agreed above appellant shall pay a sum of Rs.10,00,000 less 2,90,590 i.e. Rs.7,09,410 to the 1st respondent and the respondents 2 to 4 shall pay a sum of Rs.10,00,000/- less Rs.2,38,680 i.e
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Rs.7,61,320/- to the Ist respondent at the time of registration of the sale deeds.
11. Both the appellant and the respondents 2 to 4 shall get the tenant or tenants attorned to them and evict the said tenant or tenants meeting the expenses equally.
SCHEDULE 'A' The Northern portion of premises New No.86 Old No.14 Richmond Road, Civil Station, Bangalore measuring 13,000 Sq. Ft. facing on the North Richmond Road and on the Eastern Kingston Road bounded by:-
East : Kingston Road,
West : Premises No.87 Richmond Road,
North : Richmond Road and
South : Schedule B' property being the southern
portion of the same property.
SCHEDULE 'Β'
The Southern portion of premises New No.86, Old No.14, Richmond Road Civil Station, Bangalore measuring about 18,049 Sq.ft facing on the East Kingston Road bounded by East : Kingston Road, West : Premises No.87 Richmond Road,
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North : Schedule A property being the Northern Portion of the same property.
South : Property belonging to Veeraraje Urs.
Wherefore, the parties hereto pray that the Judgement and decree dated 15.4.1989 in O.S. No.8443/1980 on the file of the IV Additional City Civil Judge, Mayo Hall, Bangalore be set aside and that a decree be passed directing the Ist respondent to specifically perform the agreement dated 23.8.1978 executing the deed of sale of Schedule 'B' property in favour of Appellant on payment of Rs.2,80,590/- towards the balance of sale consideration and Rs.7,09,410/- as goodwill and friendly gesture at the time of registration of the deed of sale and if the 1st respondent fails to execute the sale deed, the said balance of consideration Rs.2,80,590/- and Rs.7,09,410/- as good will and friendly gesture shall be deposited in the trial court within 2 months from the date of decree upon which the trial court shall execute the sale deed in favour of the Appellant in respect of schedule 'B' property and also to specifically perform the agreement dated 15.11.1978 with prior agreements executing a deed of sale of Schedule A property in favour of Respondents 2 to 4 on payment of Rs.2.03,680/- towards the balance of sale consideration and Rs.7,61,320/- as goodwill and friendly gesture at the time of the registration of the
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deed of sale and if the 1st respondent fails to execute the sale deed, the said balance amount of consideration Rs.2,03,680/- and Rs.7,61,320/- as good will and friendly gesture shall be deposited in the Trial court within 2 months from the date of decree upon which the court shall execute the sale deed in favour of the Respondents 2 to 4 in respect of Schedule A property.
Advocate for Appellant Appellant
Respondent 2
Respondent 3
Advocate for Respondents 2 to 4 Respondent 4
Bangalore
Dated: 12.2.1999"
11. On a plain reading of Ex. P.5, what emerges is that it was a private arrangement drawn up between the parties during the pendency of the First Appeal, evidently with the intention that it would be placed before the Court as the basis for recording a compromise. The recitals indicate that the parties contemplated a division of the property and
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apportionment of consideration, depending upon how the litigation then pending would conclude. The document bears the hallmarks of a tentative understanding arrived at.
12. The structure of the document itself suggests that its efficacy was dependent not merely on the signature of the parties but on its presentation before the Appellate Court for acceptance under Order XXIII Rule 3 of the Code of Civil Procedure. That step never occurred. The parties continued to contest the appeal without reference to Ex. P.5, and the appellate proceedings culminated in a final adjudication without the document being brought on record. This omission is significant because Ex. P.5, by its very nature, appears intending to drive legal force, only upon being placed before and acted upon by the Court.
13. Thus, the reading of Ex. P.5 gives the impression of an inprinciple understanding or a proposed compromise, the legal effect of which was contingent upon the Court approval. In the absence of such presentation or recording
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before the Court seized of the appeal, Ex. P.5 does not, by in its own terms, manifest the attributes of a concluded, binding and independently enforceable contract. The Apex Court in the case of Mayawanti (supra) has held at para Nos.18, 21 and 22 as under:
"18. The specific performance of a contract is the actual execution of the contract according to its stipulations and terms, and the courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded.
x x x
21. As Chitty observes, the "prophecy has not been wholly fulfilled, for the scope of the remedy
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remains subject to many limitations." But the author observes a welcome move towards the more liberal view as to the extent of jurisdiction which was favoured by Lord Justice Fry. But where no contract has been entered into at all, there is no room for any liberal view.
22. Section 9 of the Specific Relief Act says that except as otherwise provided in that Act where any relief is claimed under Chapter II of the Act in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts. In the instant case the defence of there having not been a contract for lack of consensus ad idem was available to the defendant."
14. The Apex Court held that where the stipulations and terms of the alleged contract are uncertain or where the very existence of consensus is doubtful, there is in law, no contract at all, and consequently, no scope for specific performance.
15. Learned Senior Counsel for respondent Nos.1 to 3/plaintiffs submits that Ex. P.5 was executed on 12.02.1999
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during the pendency of RFA No.374/1989 and the judgment of this Court on 05.03.1999, since the agreement preceded the judgment, it was intended to operate upon the decree, that would eventually be passed in the appeal. It is asserted that Ex. P.5 was not speculative, but an equitable assignment of rights in a decree supported by consideration reciprocal promises and signatures of all parties.
16. Learned Senior Counsel for the respondents 1 to 3/plaintiffs also contends that the appellants have taken inconsistent pleas. Firstly, that Ex. P.5 is not a concluded contract. Secondly, that assuming it is a concluded contract, it has been abandoned by the plaintiffs, these pleas are mutually destructive. Either a contract exists or it does not, a non-existent contract cannot be abandoned. He submits that in order to constitute a waiver there must be a voluntary and intentional relinquishment of a known right and the essence of waiver is 'estoppel'. Where there is no 'estoppel' there can be no 'waiver' and relies upon the judgment reported in the case of Municipal Corporation of Greater Bombay vs Dr.
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Hakimwadi Tenants' Association and Others25 (Dr. Hakimwadi Tenants), waiver/ abandonment is a matter of fact and must be proved by clear evidence, and not inferred casually. That the party alleging abandonment, must plead specific facts and enter the witness box to prove voluntary relinquishment. Here, the appellant/defendant has not led evidence to prove abandonment, mere non-mention of Ex. P- 5 in earlier proceedings does not automatically amount to waiver. Relies upon Gurbux Singh vs Bhooralal26 to contend that the onus lies on the defendant to establish the bar, be it waiver, estoppel or res judicata. Distinction is made to the judgment relied by the appellant in Ramdas (supra) to contend that MOU itself contemplated further steps, (withdrawal of suit, payment of guarantee liability, filing of compromise petition) and thus, Ex. P.5 is a concluded agreement, the decision in Ramdas (supra) is not applicable. Further, the appellant having admitted the execution of Ex. P.5, not denied his signature, once 25 1988 (Supp) SCC 55 26 AIR 1964 SC 1810
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admitted, the legal effect of the document is for the Court to decide. The plaintiffs have consistently asserted Ex. P.5 is a binding agreement. The appellants/defendants cannot defeat it by inconsistent defences of, "non-existence and abandonment", and that the plea fails for want of evidence and legal foundation.
17. The definition of waiver as described in Halsbury's Laws of England, "waiver is the abandonment of right in such a way that the other party is entitled to treat the abandonment as binding and to avoid the right if it is later assisted. Waiver may be expressed or implied". In the essence, waiver presupposes the existence of a legal right, which is knowingly and voluntarily relinquished. A person who is entitled to rely on a contractual speculation or statutory benefit may waive it and allow the contract/transaction to proceed as though that stipulation did not exist. Thus, waiver is not presumed, it must be inferred from conduct which shows conscious abandonment. The appellants/defendants alleged that the respondents 1 to
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3/plaintiffs waived/abandoned their rights under Ex. P.5 by not pressing it during RFA No.374/1989 or in the SLPs.
18. The judgment relied by the respondent Nos.1 to 3 in Sha Mulchand (supra) and Rangammal are distinguishable as in Sha Mulchand the case dealt with proof of abandonment of admitted contract. Here, the very existence and enforceability of contract Ex.P5 is denied, hence, Sha Mulchand is not applicable. In Dr. Hakimwadi Tenants presupposes a valid right capable of being waived. The judgments relied by the appellant in the case of Ramdas squarely applies to the present facts as Ex. P.5 was never filed before the Court in RFA No.374/1989 nor before the Apex Court, therefore, as in Ramdas, it lacks the essential element of judicial acceptance under Order XXIII Rule 3 CPC. The trial Court erred in treating an unfiled private document as enforceable. Hence, Ramdas directly applies rendering Ex. P.5 legally inoperative. The respondent Nos. 1 to 3 reliance on the equitable assignment is misplaced. An assignment of "a future decree", based on
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uncertain litigation is precisely the kind of speculative arrangement disapproved in Mayawanti's case. The trial Court draws an adverse inference against the defendant on the footing that he did not enter the witness box to explain his conduct regarding Ex. P.5, relying upon decision in the case of Vidhyadhar Vs. Manikrao and Another27 (Vidhyadhar) on non-examination of party.
19. However, the law is well settled that the initial burden to prove the existence, validity and enforceability of the contract rests on the plaintiff, only after the burden is discharged, the burden shifts on the defendant. In the present case, the plaintiffs did not establish why the said document, admittedly was not presented in RFA No.374/1989 and in SLPs and not acted upon for years. The non-filing and non-reliance on Ex. P.5 in crucial earlier proceedings is a matter of record. No satisfactory explanation has been given in the plaint, in evidence, or in arguments, for that conscious omission. In these 27 AIR 1999 SC 1441
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circumstances, the Trial Court inverted the burden of proof by taking Ex. P.5 as established and then casting the onus on the defendant to show abandonment. Such an approach is legally unsustainable. It is also of significance, that the dispute as to the rights under the rival agreements stood adjudicated in O.S. No.8443 of 1980 and RFA No.374/1989 was decided by this Court and the Apex Court refused to interfere in the appeals preferred by the plaintiffs and therefore, finality to the decree in favour of the appellant/defendant. Permitting the specific performance of Ex. P.5 at this stage would, in substance, amount to:
i. Rewriting the effect of the earlier decree;
ii. Creating a fresh set of rights inconsistent with the decree that has attained finality.
Ex. P.5 is of 1999, the decree in appeal is of 1999, SLPs are dismissed in 2006, the suit is instituted thereafter.
20. Throughout the long interregnum, the plaintiffs did not place Ex. P.5 before any Court nor assert rights under it in the earlier litigation. The equities arising out of the final
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decree in favour of the appellant and long silence of the plaintiffs weigh heavily against granting a discretionary equitable relief of specific performance at this late stage. Even assuming that some contractual arrangement could be spelled out from Ex. P.5, this Court would be disinclined, in the exercise of its equitable discretion, to decree specific performance in favour of the plaintiffs having regard to:
i. The conscious non-disclosure of Ex. P.5 in earlier binding proceedings;
ii. The delay in asserting rights; and iii. The prejudice that will be occasioned to rights crystallized under a decree affirmed by the Apex Court.
21. The trial Court misdirected itself by assuming the enforceability of Ex. P.5, shifting the burden to the defendant and drawing adverse inference without the plaintiffs' first discharging its initial burden.
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22. For the foregoing reasons, the point framed for consideration is answered and this Court pass the following:
ORDER
(i) The Regular First Appeal is hereby allowed.
(ii) The judgment and decree of the trial Court dated 23.03.2023 in OS No.25242/2009 is set aside. The Suit of the plaintiffs is hereby dismissed.
Sd/-
_____________________ JUSTICE K.S. HEMALEKHA CKL/MBM