Karnataka High Court
Sri P Ramesh vs Sri M R Krishna Reddy on 24 June, 2022
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 148 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 148 OF 2022 (SP)
BETWEEN:
SRI P.RAMESH
S/O PAPAIAH REDDY
AGED ABOUT 56 YEARS
R/A NO.1, SANJANA NILAYA
AYYAPPA TEMPLE STREET
MARATHAHALLI EXTENSION
BANGALORE-560 037. ...APPELLANT
[BY SRI CHOKKA REDDY, ADVOCATE (PH)]
AND:
SRI M.R.KRISHNA REDDY
S/O M.RAMA REDDY, AGED ABOUT 61 YEARS
R/AT MUTTUKADAHALLI VILLAGE
ANUGONDANAHALLI HOBLI
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT
PIN CODE-562 114. ...RESPONDENT
Digitally signed by
THIS R.S.A IS FILED UNDER SECTION 100 OF CPC., AGAINST
VEENA KUMARI B THE JUDGMENT AND DECREE DATED 17.12.2021 PASSED IN
Location: High
Court of R.A.NO.15/2021 ON THE PRINCIPAL DISTRICT AND SESSIONS
Karnataka JUDGE BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
13.11.2020 PASSED IN O.S.NO.1027/2017 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU.
THIS RSA COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:
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RSA No. 148 of 2022
JUDGMENT
Challenging judgment and decree dated 17.12.2021 passed in R.A.No.15/20221 by Prl.District & Sessions Judge, Bangalore Rural District Bangalore dismissing appeal confirming judgment and decree dated 13.11.2020 passed in O.S.No.1027/2017 by I Addl. Senior Civil Judge, Bangalore Rural District, Bangalore, appellant has preferred this second appeal.
2. Appellant herein was plaintiff in original suit and appellant in first appeal, while respondent herein was defendant in suit and respondent in first appeal. For sake of convenience, parties shall hereinafter be referred to as per their ranks before trial Court.
3. O.S.No.1027/2017 was filed seeking for specific performance of agreement of sale executed by defendant on 26.03.2008 in respect of land bearing Sy.No.46/B, new Sy.No.46/P2 measuring northern side 125 X 30 ft. for purpose of road to survey no.45/2 out of 06 guntas situated at Muttukadahalli village, Anagondanahalli Hobli, Hoskote taluk -3- RSA No. 148 of 2022 (hereinafter referred to as 'suit property'). It was stated in plaint that defendant, absolute owner of suit property executed an agreement of sale in favour of plaintiff on 26.03.2008 agreeing to sell suit property for a total sale consideration of Rs.9,00,000/- by receiving Rs.1,00,000/- as advance. Agreement stipulated that balance amount of Rs.8,00,000/- was to be paid at time of registration. It was also stated that subsequently plaintiff paid further advance amount on various dates totaling to Rs.5,36,225/- and agreed that balance amount of Rs.2,63,775/- was to be paid after preparation of sketch by revenue authorities. Though, plaintiff was ever ready and willing to abide by terms of contract and formed road and drainage investing Rs.4,00,000/- and called upon defendant to perform his part of contract, defendant postponed same on several pretexts and giving false assurances. Plaintiff himself obtained 11-E sketch and as no time was stipulated in agreement of sale, called upon defendant to execute sale deed, but defendant failed to turn up. Plaintiff got issued legal notice on 20.06.2017 calling upon defendant to come forward and execute sale deed after receiving balance sale consideration. -4- RSA No. 148 of 2022 Same returned with postal shara "intimation delivered'. Thereafter plaintiff filed suit.
4. Despite service of suit summons, defendant did not enter appearance. He was placed ex-parte.
5. Based on pleadings, trial Court framed following issues:
1. "Whether plaintiff proves due execution of the sale agreement dated 26.03.2008?
2. Whether the plaintiff proves that he has been ever ready and willing to perform his part of the contract?
3. Whether the suit is in time?
4. Whether the plaintiff is entitled to a decree of specific performance of contract as prayed?
5. What decree or order?"
6. In support of his case, plaintiff examined himself as PW.1 and two other witnesses as PWs. 2 and 3. Exhibits P.1 to P.7 were marked.
7. On consideration, trial court answered issue no.1 in affirmative, issue nos.2 to 4 in negative and issue no.5 by dismissing suit. Aggrieved by same, plaintiff filed -5- RSA No. 148 of 2022 R.A.No.15/2021 on several grounds. It was contended that agreement of sale was executed to purchase land measuring 125 ft. X 30 ft. to provide road to property bearing Survey no.45/2. In agreement of sale dated 26.03.2008, it was stipulated in clause - (iv) that defendant was required to furnish all documents necessary for registration. Pending registration, defendant received further advance money. As no time limit was specified in agreement, defendant ought to have executed sale deed as and when demanded by plaintiff. It was also contended that Article 54 of Limitation Act provided that where no time limit was specified for execution of sale deed, limitation to file suit would begin from date of refusal.
Therefore, trial Court erred in dismissing suit as barred by limitation which was contrary to Article 54 of Limitation Act.
8. It was also contended that after coming into conclusion that plaintiff proved execution of agreement of sale, burden lie on defendant to establish that there was no breach of terms of agreement by defendant. Though, defendant remained ex-parte and failed to discharge above mentioned burden, trial Court erroneously dismissed suit. -6- RSA No. 148 of 2022
9. Defendant remained ex-parte even in first appeal, therefore, based on contentions urged, first appellate Court framed following points for consideration:
1. "Whether the plaintiff has made out sufficient ground to show that the trial Court has committed any error in coming to the conclusion that the plaintiff has not proved his ready and willingness to perform his part of the contact ?
2. Whether the plaintiff has shown that the trial Court has committed error in coming to the conclusion that the suit is barred by limitation ?
3. Whether the plaintiff has made out any ground to interfere with the impugned judgment and decree of the trial Court at the hands of this Court as sought for in the appeal?
4. What order?
10. On consideration, it answered points no.1 to 3 in negative and point no.4 by dismissing appeal. Aggrieved by concurrent finding, plaintiff is in second appeal.
11. Sri Chokka Reddy, learned counsel for plaintiff submitted that both Courts consistently erred in casting burden of proof upon plaintiff. It was submitted that after execution of agreement of sale, defendant was required to furnish all -7- RSA No. 148 of 2022 revenue documents, necessary for registration of sale deed and no time limit was stipulated for execution of sale deed.
12. On consideration of evidence led by plaintiff, trial Court concluded that agreement of sale was proved. Therefore, instead of placing burden on defendant to establish if there was any breach of terms of agreement, trial Court proceeded to evaluate evidence placing burden upon plaintiff. It dismissed suit as being barred by limitation, which was highly objectionable.
13. Learned counsel further submitted that last payment in pursuance of agreement of sale was received by defendant on 15.03.2017, which was endorsed on agreement. Therefore, there was no justification for holding that suit was barred by limitation or for failure of plaintiff to prove readiness and willingness.
14. It was submitted that this Court in 1H.M. Krishna Reddy Vs. H.C. Narayana Reddy, held that where no time limit was fixed for execution of sale deed, period of limitation for filing suit for specific performance would be three years 1 AIR 2001 Kar.442 -8- RSA No. 148 of 2022 from date of refusal to perform in terms of contract, as per second part of Article 54 of Limitation Act. It was submitted that as per clause(iv) of agreement of sale in instant case, no time limit was specified and defendant was required to furnish all revenue documents necessary for registration. As defendant failed to furnish same, but continued to receive additional advance amount, plaintiff in meanwhile after obtaining revenue sketch called upon defendant to come forward to execute sale deed. Despite receipt of legal notice, defendant failed to perform his part of contract. Suit filed within three years of date of legal notice which would be deemed date of refusal and within period of limitation.
15. Learned counsel proposed following substantial questions of law for consideration:
i) Whether conclusions of both Courts that suit was barred by limitation was contrary to second part of Article 54 of Limitation Act?
ii) Whether conclusions of both Courts was contrary to evidence on record?-9- RSA No. 148 of 2022
16. Heard learned counsel, perused impugned judgment and decree and record. Copies of Exhibits and deposition made available by learned counsel for plaintiff were also referred to.
17. From above submission, it is not in dispute that defendant is absolute owner of suit property. Trial Court held that plaintiff proved due execution of agreement of sale dated 26.03.2008. Defendant did not question said finding. Therefore, execution of agreement of sale is also not in dispute. Suit for specific performance was filed on 01.08.2017 i.e., about nine years and five months after agreement of sale is also not in dispute. While, plaintiff contends that no time limit was stipulated in agreement of sale and therefore time was not essence of contract and also claims that defendant received additional sale consideration on 15.03.2017 and failed to come forward to perform his part of contract when demanded by plaintiff by issuing legal notice dated 20.06.2017 and suit filed within two months thereafter could not be considered as barred by limitation, both Courts have concurrently held that suit was not only barred by limitation, but also on ground of plaintiff failing to establish readiness and willingness.
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RSA No. 148 of 2022
18. In order to establish his case, plaintiff is relying upon agreement of sale dated 26.03.2008 marked as Ex.P.7. Clauses (1) to (5) of same read as follows:
"1. And whereas, in pursuance of thereof the purchaser has paid to the vendor a sum of Rs.1,00,000/- (Rupees One Lakh Only) as initial advance amount by way of Cash, and the vendor hereby acknowledges the receipt of the same before the following witnesses.
2. The purchaser has agreed to pay the remaining balance sale consideration amount of Rs.8,00,000/- (Rupees Eight Lakhs only) at the time of sale deed registration. All registration expenses shall be borne by the purchaser.
3. The vendor assure the purchaser that the said Road property is free from all types of encumbrances, notices, minor claims, court attachments, litigations, charges, liens, etc., and further assure that in future if any defect of title arises the vendor will set right the same to the entire satisfaction of the purchaser and hereby indemnifies the purchaser.
4. The vendor has agreed to produce all revenue records. Pahani, Mutation, Katha, Tax paid receipt etc., in respect of above said property before executing and register the sale deed. And the vendor has agreed to execute sale deed to the name of purchaser or his nominee/s at the time of registration of sale deed.
5. Whereas, both the parties reserve their right to sue to specific performance of this agreement. In case any party fails to do his
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part of duty as said above, the aggrieved party can sue for specific performance of this agreement and in such even the defaulter shall be held responsible for payment of all costs, consequences, damages etc,"
19. Bare perusal indeed reveals that no time limit is stipulated for registration of sale deed. However, it is seen that out of total sale consideration of Rs.9,00,000/-, only a sum of Rs.1,00,000/- is shown as advance amount received, with balance of Rs.8,00,000/- to be paid at the time of registration of sale deed. Revenue documents required to be produced by defendant - seller are pahani, mutation, khata and tax paid receipts etc. Burden of securing and production of 11-E sketch is not on seller.
20. Insofar as plaintiff's claim for having paid advance sale consideration in excess of amount mentioned in agreement of sale are sought to be substantiated by production of bank account extract of plaintiff. Details of payment made are also deposed about by plaintiff as PW.1 in para no.4 of his examination-in-chief, which reads as under:
"4. I submit that I paid a sum of Rs.50,000/- by way of Cash for that effect Shara has been
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executed on the agreement of sale and further the amount has been paid in a following manner to the defendant herein:
1) Rs.1,00,000/- dated 24.01.2009 by way of cash
2) Rs.30,000/- dated 09.02.2009 by way of cash.
3) Rs.10,000/- dated 09.02.2009 by way of cash.
4) Rs.85,000/- dated 13.03.2009 by way of cash.
5) Rs.4,225/- dated 01.04.2009 by way of cash.
6) Rs.1,000/- + Rs.9,000/- dated 15.04.2010 by way of cash.
7) Rs.10,000/- dated 01.06.2010 by way of cash.
8) Rs.1,00,000/- dated 26.06.2009 by way of Cheque bearing No.297015 drawn on Canara Bank, Maruthahalli Branch, Bangalore.
9) Rs.10,000/- + Rs.2,000/- dated 08.12.2009 by way of cash.
10) Rs.25,000/- by way of Cheque No.00315968 dated 08.12.2009 drawn on Canara Bank, Maruthahalli Branch, Bangalore."
21. To substantiate payments, plaintiff relied upon bank account statement marked as Ex.P.1 apart from endorsement on agreement. However, a comparison would not inspire confidence, firstly as date of payment do not match with entries in bank account; secondly, as most of them are claimed to be cash payments without corresponding receipts. Endorsements
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RSA No. 148 of 2022 on agreement being unsubscribed, both Courts would be justified in disbelieving claims especially claim to have made last payment on 15.03.2017 which is not even mentioned in legal notice dated 20.06.2017 marked as Ex.P.2.
22. While passing impugned judgment, trial Court has examined oral and documentary evidence. Fact that suit was filed more than nine years after agreement of sale without any explanation, led it to conclude that plaintiff failed to establish his readiness and willingness. Said finding would be justified firstly as only a small portion of total sale consideration was paid and secondly, plaintiff failed to establish capacity to make balance payment. It would also be justified as there is no specific pleading calling upon defendant to furnish revenue documents as per agreement. Production of 11-E sketch was not stipulated in agreement. Therefore, filing of suit after nine years would not be sufficient justification. Issuance of legal notice and making unsubstantiated claim of payment of further additional amount immediately preceding date of issuance of legal notice are attempts to extend period of limitation. Same would not come to rescue of plaintiff insofar as readiness and willingness. First appellate Court upon re-examination of
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RSA No. 148 of 2022 evidence has concluded in favour of findings of trial Court. No circumstances of substantial error in consideration of evidence or insofar as conclusions are pointed out either in judgment and decree passed by trial Court or first appellate Court. No substantial question of law arise for consideration.
In the result, I pass following:
ORDER Appeal is dismissed.
No order as to costs.
Sd/-
JUDGE Psg*