Karnataka High Court
T G Prasad S/O T.G.Satyanarayan vs Smt Malepati Subratamma W/O Ramaiaha ... on 29 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:10672
RSA No. 6102 of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 6102 OF 2010 (SP)
BETWEEN:
T.G. PRASAD S/O T.G.SATYANARAYAN,
AGED ABOUT : 50 YEARS, NO.8, BLAJI RAO ROAD,
BELLARY, TQ & DIST: BELLARY-583101.
...APPELLANT
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
1. SMT. MALEPATI SUBRATAMMA
W/O RAMAIAHA SETTY,
AGE: MAJOR, OCC: HOUSE WIFE,
R/O D.NO.87/23, MAIN ROAD,
COWL BAZAR, BELLARY-583101.
2. SMT. T.G.GEETA W/O T.G.PRASAD
W/O T.G.EARANNA AGE: 52 YEARS,
Digitally signed 3. SRI T.G.VIJEYANDRA S/O T.G.PRASAD
by YASHAVANT AGED ABOUT : 32 YEARS,
NARAYANKAR THE RESPONDENTS 2 & 3 ARE R/O NO.8,
Location: HIGH BALAJI RAO ROAD, BELLARY,
COURT OF
KARNATAKA TQ & DIST: BELLARY-583101.
DHARWAD ...RESPONDENTS
BENCH (R1 TO R3 ARE SERVED AND UNREPRESENTED)
DHARWAD
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE PASSED IN R.A.NO.18/2008 DATED
02.08.2010 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE,
BALLARY, CONFIRMING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.170/1999 DATED 26.07.2007 BY THE PRINCIPAL SENIOR
CIVIL JUDGE (SR.DN.), AND CJM, BALLARI AND ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:10672
RSA No. 6102 of 2010
ORAL JUDGMENT
This regular second appeal is filed by the defendant challenging the judgment and decree dated 02.08.2010, passed in R.A.No.18/2008, by the II Additional District Judge, Ballari (First Appellate Court), which confirmed the judgment and decree dated 26.07.2007, passed in O.S.No.170/1999, by the Principal Senior Civil Judge (Sr.Dn.) and CJM Ballari (trial Court), thereby the suit filed for specific performance of contract is decreed in part, thereby directing defendants No.1(a) to 1(c) jointly and severally to pay the advance amount of Rs.1,45,000/- with interest at the rate of 6% per annum from 02.11.1996 till realisation.
2. Both the Courts below have not granted the relief of specific performance of contract, but have granted only alternate prayer of refund of advance money.
3. For the purpose of convenience, the ranking of the parties is referred to as per their status before the trial Court.
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NC: 2024:KHC-D:10672 RSA No. 6102 of 2010
4. It is stated that the defendant is the owner of the suit property and he has formed lay-out under the name and stile of "Durga Nagar Colony". Thereafterwards, there was an agreement of sale executed between plaintiff and defendant offering suit scheduled property to plaintiff by defendant for total sale consideration of Rs.1,50,000/- and the agreement of sale is dated 02.11.1996. It is stated that the plaintiff has paid advance money of Rs.1,45,000/- to the defendant. But, later defendant No.1 has not executed sale deed. Therefore, the plaintiff has filed suit for specific performance of contract.
5. The defendants have appeared in the suit and denied to execute the sale deed and also denied that the plaintiff has paid an amount of Rs.1,45,000/- to the defendants. Therefore, prayed to dismiss the suit.
6. The trial Court after appreciating the evidence on record has decreed the suit in part thereby directed the defendants to refund the advance amount of Rs.1,45,000/- to the plaintiff with interest at the rate of 6% p.a. from the -4- NC: 2024:KHC-D:10672 RSA No. 6102 of 2010 date of agreement till realization. The trial Court has not granted the relief of specific performance of contract.
7. Being aggrieved by directing the defendants to refund earnest amount as stated above, they have preferred regular appeal before the First Appellate Court. The First Appellate Court has dismissed the appeal.
8. Against this concurrent finding of fact, the defendants have preferred this second appeal.
9. This Court on 08.04.2014 while admitting the appeal has framed the following substantial questions of law.
"Whether the First Appellate Court as well as the trial Court have committed a serious error in decreeing the suit for specific performance by ignoring the material evidence placed on record, more particularly, the document relating to earlier financial transactions between the plaintiff and defendants and thus the judgments of the First Appellate Court and the trial Court are perverse and illegal?"-5-
NC: 2024:KHC-D:10672 RSA No. 6102 of 2010
10. The plaintiff has filed the suit for specific performance of contract. It is not disputed by the plaintiff that the defendants have formed a layout by name Durga Nagar Colony and formed sites. The plaintiff has stated that there was agreement of sale as per Ex.P.1 dated 02.11.1996 and total sale consideration was Rs.1,50,000/-, out of which the plaintiff has paid Rs.1,45,000/- to the defendants, but the defendants have not executed the sale deed to the plaintiff though the plaintiff was willing to perform his part of contract. Ex.P.1 agreement of sale is dated 02.11.1996. Both the trial Court and the First Appellate Court have concurrently held that execution of Ex.P.1 agreement of sale is proved. Therefore, though the main relief of specific performance of contract is refused, but have granted the alternative relief of refunding the advance amount to the plaintiff. When the agreement for sale is proved to have been executed between the plaintiff and the defendants, then the plaintiff is entitled for refund of earnest amount by the defendants. Therefore, in this regard the trial Court has exercised its discretion in dismissing the suit for specific -6- NC: 2024:KHC-D:10672 RSA No. 6102 of 2010 performance of contract and by decreeing the suit for alternative relief, which is rightly confirmed by the First Appellate Court. Therefore both the trial Court and the First Appellate Court have exercised the discretion as per section 20 and 22 of the Specific Relief Act and have rightly granted the relief of refund of amount only, which needs no interference by this Court. Therefore, the substantial question of law is answered in the negative. Hence, appeal is liable to be dismissed. Accordingly it is dismissed.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE AC-para 1 to 5.
MRK-para 6 to end.
CT:GSM List No.: 1 Sl No.: 60