Karnataka High Court
Basappa Munoli S/O Siddalingappa vs Balraj Mittal S/O Mohanlal Mittal on 21 April, 2010
Equivalent citations: 2010 (3) AIR KAR R 799
Bench: K.L.Manjunath, B.V.Nagarathna
IN THE HIGH coURT or KARNATAKA AT BANGALORE DATED THIS THE 21"'nAy OF APRIL, gPIo_ PRESENT ' V THE HON'BLE MR. JUSTICE K.L,~NRN;NNATHS * ANfi¥ I4 _ M I ,4 . THE HON'BLE MRS. JUSTICE B;v.PNRSARRTENR-_° REGULAR FIRST APPfi§L;§9.1424}2bG5}(SP) BETWEEN: ' A Z Basappa Munoli s/9_Sidda;in§appaf 70 years, R/at Ne}439,.Gr¢und'Eloor, 3"'Block;"3%3Stegej"2m§Crbssy' BasaveshwéEfiegef}Q¢ \V'4'[.j Bangalore-jg} '*»_<g-fl"' '; .. APPELLANT (Bf Adfie¢aEe SEiQC.S.§Easanna Kumar 3 for Mrs Rama: &--Kumar) AND: Ba£rej.Mit£a1 s/e Mohanlal -*._ Mit%el,u35 years; R/at No.91, ,«7?"A<_Main Road, 3"'E1ock, .1v4V"Stage},Besaveshwarnagar, iPanga1s;¢--79. .. RESPONDENT
I(By AdNocate Sri.N.Jayaprakash Rao for * ' M/s Jaypee Assts.)
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This REA is filed under Sec.96 of CPCagainst : the judgment and decree dated 16.8.2005 passed in 6/ No.16371/2003 on the file of XXVIII Addl. City Civil Judge, Mayohall Unit, Bangalore, decreeing' the suit for specific performance. 1 F This Appeal is coming on for further hearing this day, MANJTJNATH J. delivered the follc-f4firfii.ngp;V"'e. Appellant who was Vin»'jo'iS:""Not16371/2003 has preferred this. appeeieebeing "aggrieved by the judgment and decree dated 1o&3;2§05 passed by the 28th Addl. City Civil Judgeigy wherein the trial court has decreed the suit of the respondent--plaintiff thereby dire§£$hé the sppe11ant--defendant to execute the saie deed ih respect of the suit schedule property by receiving the balance sale consideration in terms __of the agreeeent dated 11.12.2002 at the costs of the if the defendant fails to execute the sale _deed},'1iberty is granted to the respondentw v;plaintif£&'to' deposit the balance sale consideration "u"2githin vtwo months and get the decree executed in _accordence with law.
(7,
2. For the sake of convenience parties would be referred to as per their status before sthe court below.
3. Plaintiff instituted the spit fig grant a decree of specific performance of! agreeeent be; flsaiep dated 11.12.2092 executed by"ythe ewldireet the defendant to rece3Ve then balance "salefi consideration and to execute the gale ¢§e& ?@"reSPect of the suit schedule property within time to be stipulated by the court and ts deliver vacant possession of the schedule Property: f$f the defendaek fails to execute the sale deed to pereitnfibe plaintiff to deposit the balance sale considIeraVtion"ia1jto court and to execute a sale pydeedfin'favour of the plaintiff by appointing a court * commissioner and also to deliver vacant possession to thefplaintifffi f%¢p4. The suit schedule property is all that part and fix parcel of immovable property bearing Corporation i"«iNof439 (West of Chord Road, 3"' Block, '3"' Stage 8/ Extension) presently known as 3"i stage, 3"' block, Bangalore, consisting of ground and firstgfloor of RCC roofing with separate water, electricity and sanitation and the property is measurin§@aast;gest'60 feet and north--south 40 feet;
5. According to the hplaint-iavernents,£ defendant being the absolute owner of the suit property intended to sell the schedule..prepartg:5£or a valuable sale consideration rand aweefitnjyseetetl of a prospective buyer. Plaihtirrx"ofrerediitoiipurchase the schedule property _enai afterj §ttee1_ negotiation contract was concluded,oe litl2t2flO2 and that the plaintiff agreed to purchase the suit figoperty for a consideration of _ Rs.44;61;000}-- and a sum of Rs.10,61,000/-- was paid as 'A'-._advancei. ._"c«ut of which Rs.10,50,000/- was paid by n1ean.s_« tgcheque dated 11.12.2002 drawn on Punjab v_National: Bank, RMV Extension, Bangalore, a sum of iid'3s;1l,0§0/~ was paid in cash. Defendant handed over 1;zeeex' copies of documents of title and also 8/ encumbrance certificate pertaining to the plaint schedule property .
6. It was agreed between the parties Lthatr sale transaction was required to he completed within fear months and that the over possession of both floor building to the plaintiffi by adischarging all the outgoings before registration of the sale deed.
7. It is ruse; case rofrflthef plaintiff that since defendant 'perform his part of the period of 4 months, he sought more months. Accordingly, as per the endorvsenienfz dated 8.4.2003 two months time was jmviextendeiie. and thatlllithe plaintiff was ready and willing 'u1'.:.o" part of the contract and still he is ready' and to perform his part of the contract. '~ his the specific case of the plaintiff that .ffdef:en'dant was required to deliver vacant possession of schedule property and even after the period was EV extended by two nmnths, defendant did not take steps to evict the tenant who was in occupation of the first floor of 'the building" and. also did_£9§£n"e#cnte the ground floor which was in. his possession? iflln_ the circumstances, plaintiff' got biosuedgdlegalidhotice hon 2.8.2003 calling upon the deiendant to cbfifiiete the sale transaction by Vreceivingy*tfieEQhalancedisale consideration. Defendant who receiyed the notice sent a. reply letter' datedr l$n§e2fi§hE stating 'that. he 'was ready and gwiliiné "fig 'e¥é¢ufi§§ the sale deed by receiving the balance sale consideration and he also fixed gthe ndatei forfl registration in the letter as 1o.9.2cVi"c.3i.«-- the plaintiff, defendant was postponing 'the 5ehecution of the sale deed by one '.reason1or*the other since he was unable to secure an ialternatenaccomodation and that he was orally seeking extensicniofitime.
i*ag9. It his further stated in the plaint that on l'=i§Q¢3;2003 defendant by issuing a legal notice i"n unilaterally terminated the agreement of sale for 37/ which a detailed reply was sent by the plaintiff on 22.9.2003 and that the defendant had a1so;j'e.nclosed a cheque for Rs.'7,61,000/- at the time the agreement which cheque was '»_the plaintiff to the defendant. s'_sgn;é'«__d¢f.g§naaVnt__¢iid7.né=t _ come forward to fulfil ;his «part oft-"--i.t.h'e0' o?bli.gation, finally plaintiff got notice on 15.10.2003 contendin4§w.p,_jifiefendaintv is trying to create a right' in party with a malafide '-pljaintiff was ready and perform his Accordingly, the suit that the defendant is postponing" the sale deed in order to extract more money "at. the instance of his son---in---law. lhfter receipt of the suit summons defendant suit. According to the defendant, he _adIni'tted"t'he execution of the agreement of sale and h .i'e.G9ipt"..-- .0 of advance sale consideration of
2._R;3_V;l0}61,000/-, he also admitted that sale transaction required to be complete within four months from 0* the date of the agreement. It is also his case that he was ready and willing to perform his part of the contract and that the plaintiff could not ohtain the sale deed for paucity of funds with_him;y%gacording to the defendant, in terms of the agreement of sale} he got evicted his tenant from the first floon and also he obtained a tenanted premises to shift his residence from the ground floor of the plaint schedule property. Though. he wasy willing ptoI:execg£%gLthe sale deed. by receiving balance sale considerahion as per his letter dated g.;}i,dbnot take the sale deed since 3 he *f5§dfijineffghehe§di to pay balance sale consideration of RsFddpd0,000/-. According to him, it is not _the hdefendant who committed breach of the 7_'eg;;eexheht.""..hut is the plaintiff since he had no money to tahe the sale deed in his name. According to id' him; suit is instituted only to harass the defendant. V"*[He has denied that he and his sonwin-law demanded the f_plaintiff to pay more consideration than agreed upon. iflhufied also denied. the allegation that defendant along 37/ with his son--in--law was approaching the plaintiff orally requesting him to extend time. Since plaintiff has comitted breach of contract, he cannot blame the defendant in order to get his suit decreedri According to him, he was working as branch fianager in garnataha State Apex Bank and he is aged about 57 years having only daughter and on accocnt of tbs delay in getting the sale consideration in time, defendant is unable to sell the property. Ag¢§grai§g=t§ him, unless and until plaintiff to pay the balance sale consideration' and "to lpfirchase stamp paper and registration ;¢s;§ges;p qdestion of calling upon the defendant "to .§s§§§e@f§ae schedule property did not arisew»fora consideration since plaintiff was not Vp killing? £c_ take the sale deed by paying sale 'consideration;~defendant had no other option than to 'if' terminate the agreement and in terms of the agreement u"V as sale by forfeiting the amount as agreed upon, a '*,¢heq§é for Rs.7,61,000/w was sent along with ,_ termination notice and that the plaintiff having <w/ 10 received such notice has filed the suit thereof with false and frivolous grounds, therefore he "requested the court to dismiss the suit.
11. Based on the above*-pleadin§sp'fifollowing .issues were framed by the trial court} "d
1. Whether the plgigtifi, reinvest 'that*7 the defendant executed an agreement of sale dated 11.12.2oo2?»_ "-'- *- "- V Whether plaintiff proves that he has paid an advance oft _Rs;l0,6l;00Q/t out of sale consideratipnjof:Rs;44,6l,000/-? Whethefwfigfiewhplaintiff proves that he was ready and willing tq perform his part of the " contract under the agreement?
.; Whether fl defendant proves that plaintiff committed breach of contract?
;"uWhether plaintiff is entitled for the relief '*,,of specific lhvacant possession of the schedule property as "csought for?
performance and delivery of _What order or decree?
'In order to prove their respective pyccntentions, on behalf of the plaintiff he got himself g examined as Pwwl and two other witnesses viz., V 13 S.G.Gopalaiah who has been examined as ?W--2 who is the mediator to the transaction and one Venkatarlvamaiah as 9W---3 who has made an endorsement as for extension of time. Plaintiff relied...VupoVn.d.:"docunee'nt_s Exs.P-1 to 10. on behalf of i;ahe:...defendan:t",.VV»_giejfen.dant himself got examined as DWs1.4__.and'._he ,1)... 1 to 6. Trial court, oral and documentary evidence held issues 1 to 3 and 5 in No.4 in the negative plaintiff came to be decreed: vliithereby directing the defendant sale deed by receiving the balance savJ.¢- ¢o'ns'i'd.=g;-'a1§:"c}n of Rs.34,oo,ooo/-. This and "decree" is called in question in this
13. havemhieard the counsel for the parties. VV"The main contentions of the counsel for the ..a1;>f3xel'lant before us are: Trial court has committed a 'yserlious error in not appreciating the evidence of PW-«IL «V E2 and DW--1 properly. According to him, on account of the wrong appreciation of evidence of PW--1 &fi2, trial court has held issues 2 & 13 in the affirmative and issue No.4 in the negative. If the trial court had appreciated the evidence of Zfiwfil fproperlya egg Taleoki cross--examination of DW--l, trial court could not have held issues 2 & 3 in favour iof®tha:i%1aintiff. According to him, jndgnenty of fithe trial court is contrary to the judgments of the supreme Court since plaintiff has failed to prove that he was ready and willing to perforn his peg: of the contract and that he was ready with the balance sale consideration. He further 'contends"u'that"fi when the appellant has specifically contended that registration could not be dconpleted on account of nonwavailability of funds with the, figgpcfiqefig «herein, it was for the jplaintiff' to vplace"""*ma~t.eri:als before the court that he was ready .fi*with the balance consideration of Rs.34,00,000/~ and ;that 'he was ready to 'purchase the property at his ncosts and that it could not be done so on account of Ev"
14
iv) NARINDER KUMAR MALIK Vs. SURINDER KUMAR MALIK [2009 (8) S.C.C.-743] 16 . Per contra, Mr . Jaiprakash 4' A' ._was appearing for the respondent--pla:i.ntif.f._,_"_c.on§.§§;-ids?'~.{;1f;é;t the findings of the trial co1L;rt:...':'IA-S appreciation of oral and Vdocumentary by the parties. According ready and willing to perforxr._t..V:'-- the contract and that the plaintiff sale deed only On account 0?. by the appellant, since defendantii-«ll the premises which was in his could not take the sale deed A paying Jfibalance sale consideration, therefore he contends that the trial court was "granting decree. According to him, time was b'y*"two more months at the instance of the vdefendantaeappellant and therefore time was not the .,,u"e'srsenc_e of contract and since there is a breach .cpo:rimittQed by the defendant as he was not ready to "xfa'cate the premises, sale deed could not be obtained £7' 16
17. After hearing the counsel for the parties, we have to consider the following points in this appeal:
1. Whether the trial court has j properly appreciated the evidence let igi by both the parties? '= 7.' '~ *
2. Whether the plaintiff was ready and willingki to perform his part of the contract?' *
3. Whether the defendant has comitted breach of agreement even though plaintiff was ready and willing to perform his part of the contract?
4. Whether the judgment and decree of the trial ' court are required 'to ibe confirmed or reversed or modified?Jj, '1«
18. Since all these points are interwlinked with each other, we would like to deal with all the points together for the sake of convenience.
fl9, fr' After hearing the counsel for the parties and on parusaa of the pleadings and the documents produced 'V's,by 'the parties, we are of the opinion that the lV,following}points are not in dispute in this case: It 'f.ie not in dispute that the defendant is the owner of hugthelgplaint schedule property. It is also not in f"m_ dispute that the defendant had agreed to sell the 6':/' 18 agreement. If the plaintiff has committed breach of agreement, even if the defendant has not ffilfilled his part of the contract, whether plaintiff is entitled for a decree of specific performance ,and _if* the plaintiff was not ready and to' part of the contract, whether fsuitt filed :by "the plaintiff has to be rejected even theegh defendant was willing to execute Vthe_fsaleh_eeed, duln order to ascertain these facts, we have to appreciate the oral and documentary evidence ;aag;¢5,h§ both the parties. Though on behalf of the plaintiff three witnesses have been exanined, evidence of fh-2 & 3 are not relevant to considerf them above! points since they have been examined uonly"_to find out that the terms were Anegotiated at the instance of mediator Gopalaiah PW--2 and.an endorsement came to be made on the back of the Vagreefient by PW--3 Venkataramaiah. Therefore, we are _f*of_*the view that there is no necessity for us to consider the evidence of PW»2 & 3 in order to consider ~the points which are required to be considered by us 65/ E9 in this appeal. Therefore, we are of the opinion, by appreciating the evidence of PW*1 and DW-l and the documents relied upon by them, we have to find out whether plaintiff was ready and willing to'perforn_his part of the contract and [whether 'defendant 'has V committed breach of agreement or not.
20. Plaintiff has filed his a£riaa§i: in lieu of his examinationein-chief}'t_§aragraphs*1 to E5 of his examination--injchief faffidayiti is pertaining to the agreement of dsaie:fli3{Paragraph;0 deals with the exchange "of-- notices hand. paragraphw7 deals with the termination _of iagreenentp by the_ defendant by got issuing legal notice dated 20.9.2003. In para-8 only Jp1gintiff_ has astated that defendant did not come fogwa#d_ to ffalfil his part of the obligation and " V_therefore he got issued a legal notice as per Ex.P*5
-df,and for which a reply has been sent by the defendant. '".In0paragraph--9 it is stated that defendant is making to sell the property to a third party even 0"» though he was willing and ready to perform his part of W 20 the contract. Except in one sentence in para--10 of his affidavit he has not stated in regard xto his capacity to pay' balance sale consideration: and: his readiness to pay the balance sale con$ideretion;. one sentence which has been stated in his examination~infk chief in regard. to financial capacityfilis tquotedg as hereunder:
"I have always been ready and willing to pay the balance sale consideration *against the: delivery of vacant possession ofi the schedule property in its entirety at the time of registration of the sale deed and_since the defendant has committed breach of the terms of Es.?--5, I have approached the Hon'blefQourt_for specific performance of the contract;7; u" ' * '** "
Except this onedsentence he has not averred in the examinationeinwchiefc that he was ready with the fibalancei sale consideration. of' Rs.34 lacs or' he had to purchase the property. At this
-»_,_stage;' it died to be remembered that the issue was M__framed in this regard. Issue No.3 reads as hereunder:
di,"Whether the plaintiff proves that he was ready g'and willing to perfonn his part of the contract fiunder the agreement?"
3* 2} When the defendant has stated in the written statement that plaintiff did not possess money with? him to purchase the property by paying the balan§eh,sale consideration, burden is heavy on thef plaintiff Wto show that he was ready with cash or he was £e§ay;witfi¢ 'the balance sale considerations and7 that }h§{ had': capacity to pay the balance» §¢nsiqé;afi;¢n;' Eyen though he has not stated in"regard to his capacity to Pay the balance 0salet_:¢onsideration, in the examination--infchief eyenRir*we presume that he was a man of meansge*weV~haye 7to "consider the cross- examination_in regard to ascertain his capacity to pay the balance ,sale 'consideration. In the cross- examination of 2w%1[ defendant's counsel was able to iget some admissions which will go to the root of the matteri1*We[wbuld like to cull out certain admissions VGbtained.dby3 the defendant's counsel while cross- ddexaminingdPW-1:
4; :
3} "is did not write any letter to the defendant gisubsequent to the date of agreement till 10.4.2003 stating that I am ready with the money. The balance consideration to be paid was 5/ 23 that defendant was required to hand over possession of ground and first floor of the schedule property. In the cross--examination, he has admitted. he fd§¢s~ not know whether the tenant of the first floor had fiaeated in the month of Ma.rch,2003. awa:L"._eVi"
whether the defendant had vacated the grsund floor and went to a rented premises during the as ended period. From this answer it is clear that the plaintiff has not verified whether in hares ¢£$hn.F--4 defendant had vacated the _§gamige§g and rwas" ready to hand over possession of hhe entire pfeegses. Now in order to ascertain the eonduch of the defendant, it would be appropriate for us to consider Ex.P-4. Ex.P-4 is a letter addressed hy the defendant to the plaintiff, it his dated lEf8.2003 which reads as hereunder:
if §1.afi\in receipt of notice dated 2.8.2003 issued Abyi Sri,K.Ani1 Kumar Shetty, your advocate, regarding the registration of sale deed in _ respezzt of property No.439, 3" Block, 3" Stage, n,Z" Cross, Basaveswaranagar, Bangalore~79. _ E am ready to execute the sale deed in firespect of the above said property on 10.9.2003 and hand over the vacant possession of the property and all the concerned documents against 52/ 24 the payment of Rs.34.00 lakhs only (Rs.Thirty four lakhs only) through DD/Banker's Cheque being the remaining amount of sale consideration;y This is for your kind information and needful action in the matter." ~" '*"--'"' From the reading of Ex.P--4, it is clear that he wasi ready to execute the sale deed by ghanding lover possession subject to the fipayment' ef gg;34 'lacs payable by the plaintiff to hie ans he has fixed the date for registration as lQi§.2dfi§¥ LFrom reading of Ex.P--4 ix: is clear to the court that defendant was willing to _h§eai*o§é;i*9a¢:pt' possession of the propertya _If the defendant was required to hand over vacant possession* oft the property and if he has _vintimai.;e'd..the tea the plaintiff in writing, in all Vgairness ifi was for the plaintiff to go and verify whether defendant had kept the ground and first floor Vvacant and-nhether he was capable of delivering vacant iww K" possession to him or not. Ream the cross--examination :it is elicited that though defendant is residing in _ the same area, has not even visited the premises of 62/ 25 the defendant which only infer that it was within the knowledge of the plaintiff that defendant was capable of handing over possession of the property ttoy the plaintiff at the time of registrationle f;Ei.?+#_ is actually reply sent by the defendant fixing the date"
for registration to the legal notice issued by the plaintiff. If really the defendant was not willing to perform his part of the eontfigggr he would not have sent Ex.P-4. _The yery_ fact" that¥ defendant even without approaching a lawyer has sent a reply stating that he was ready and willing to execute the sale deed would on1y_proye that &f_3 honest man he requested the plaintiff to pay the halance sale consideration and to take the_sale*deedf' Since plaintiff did not obtain sth§»;;1é deed as per Ex.P-5, he has terminated the agreement 'hyijsending a cheque for Rs.7,67}000/w in ltermsWo£gthe conditions of agreement of sale for which llffplaintiff has sent a reply as per Ex.P--6. "<f21.§ Now we have to examine how far the evidence "=.y¢£ DW-1 is challenged by the plaintiff while cross-- 8/ 26 examining DW--1. After going through the entire crossw examination, except a suggestion. that. plaintiff 'was ready and willing to perform his part flofv the obligation, no admission is obtained by the plaintiff. Though he has cross--examined' fifi--l7aat-filength,W h:5= evidence has not been shaken by the plaintiff}j\d*-
22. _ Now in this hackfground, we~hase to consider how the evidence of fifi;1 has begs appreciated by the trial court in_ order htonigiyatiits finding in affirmative sd fag as issues 2 tows are concerned. So far as issues 1 Egg are concerned, we are of the View that there gas as ngcsgsity for the trial court to frame such an issue since said issues are admitted by affihfi parties in ~their pleadings. As stated supra, parties have net denied the execution of the agreement of 'sale aavitied 11.12.2002. Similarly, defendant has i"~;also not. denied the receipt of advance sale ufaconsideration of Rs.10,6l,000/- from the plaintiff out d*dof the total sale consideration of Rs.44,61,000/w. In u"«_view of the clear cut admission there was no necessity {V 27 for us to consider the findings of the court below on issues 1 & 2. Therefore, we have to consider the findings of the trial court on issues 3.&@4 in order to find out whether the findings on _th'ose':.Atwo issues % are based on proper appreciation j;e"v_giden_c'eVV»letV_' hy the parties.
23_ so far as Vigsuggr..¢lo'\'}.3"'--~.,gAis"l'concerned, trial court has considered' 4 together in paragraphs '7 1:;g--L9--.-._ court has held that to perform his part of Zthe paragraphs '7, 8 and 9.
It has evidence let in by the plaintiff show:_ in what manner he was ready gfand .__to his part of the contract. In a :for"--v.»_sp;ec'ific performance when the defendant has i w'».taken_.'a specific plea that defendant was unable to pay l""~..«..b'a.lance'*sale consideration and he was not ready with VW.th.e,_ba;lance sale consideration and when a specific V"-,.,'i"ssue has been framed to that effect, it was for the plaintiff to show by placing relevant material that he 'Q/..
28 was ready and also willing to purchase the property. Then the question that would arise ffoyr . our consideration is what is readiness is willingness. A mere saying by the he was ready to perform his part {if net be sufficient. When the defendantv. has.'.."s:.ontenried'Vthat plaintiff is not a man ofV"'=xyr_ie»ans,V"._j,Es.Vig'._for himi to produce relevant mateArials'VA~ We have already discussed the__e:vide_ncpe in detail and the admissions: 'j-defendant in the cross- examination :<:V>.f'1:..'I;=';'W*-ii. to his capacity to pay balance sale' Now it would be appropriate fora,_u.~s7tioyhccsnsider his evidence in this context '. 'V _ Admittaedliy, no bank accounts are produced albevforne" court: iiii He is not even having a bank accouintx hii-sf' name. What he says is that he is having. banlzpsaiccount in the name of the firm. Whether _firm--7 is a registered partnership firm or un- '_'re<;istAered partnership firm, what is the share of the _plaintiff in the firm and what was the balance XV 29 standing to the credit of the plaintiff in the firm, is not made known to the court by the plaintiff and he has also not let in any oral evidence to shoe how he could able to mobilize balance of Rs.34 lacs excluding Rs.4.5 lacs towards the costs yefit stamp ,§ugy\ and': registration charges. In; other hworde}_ in} orderu to obtain the sale deed, p1aint:i:€'f_Vshoulfdff-Zhaifefmxnobilized Rs.38 to 39 lacs, inch eyenirafl*scrapl of paper is produced IbeforeA_the gcourt pthate he ehad capacity to raise funds 9% flag $9b5{izéd funds to take the sale deed. In this !conteat,fl?nhenl the defendant as per Ex.P»4 has called upon the plaintiff to take the sale dead by paying balance sale consideration by fixing the date"for registration as 10.9.2003, it was for the hplaintiffh to -produce the documents. If really, defendant was not willing to perform his part of the Vcontract,latleast plaintiff would have sent a reply to ,MeEa¥Pr4 stating that defendant is unable to hand over hpossession of the property even though the plaintiff rfiasl ready with the balance consideration. Trial 6/ 'Vgf the contract.
'*iagurt_ on~ issues 3 & 4 are 30 vital and 'without aspect court, considering this lacuna in the evidence, has held that the plaintiff was ready and willing to perform. his apart: sf, the contract. According to us, the wgy gin Qwhicfitpthe evidence is let in by the x that he had no capacity: to lpay« the .§a1asée fsale consideration, therefore he could not obtain the sale deed, in terms of Ea??*4 §aé$g;n,th§ defendant had agreed to hand over vacant fioésaggggfi by receiving the balance sale consideration. Without drawing an adverse inference against "tfle1fl?p1aintiff, due to wrong V i V; Q Q Wan adverse inference has appreciation.xo£n_evidence,~ been drawn against the defendant by the court below as if the defendant was not willing to perform his part 'éonsidering Ex.P-4 and the evidence of pwél and considering the cross-examination of PW--1, Vwe are of the opinion that the findings of the trial perverse and cannot be '_a~ppre'ciated by this court and due to perversity we shave to set aside the findings on issues 3 & 4 since W p1aint1::ugou1¢¢¢p1g snags?
3} the defendant was willing to hand over possession of the property and was willing to execute the sale deed in favour of the plaintiff by receiving the balance sale consideration. Considering the evidenee of the plaintiff, we are of the opinion that trial court was required to draw an adverse; inference"=against the! plaintiff and not against the defendant and therefore we are setting aside the findings of the trial court on issues 3 a-. 4. IfA'--..._t!he trial court on issues 3 & 4 are refersedghy us} then the finding on issue No.3 automatically has to be reversed by this court without assigning any reasons as 51: is only a consequential in nature .~ Under these circumstances, we holg,that'p1aintiff was not ready and willing to eperform his part of the contract and he was ready with the lbalance Vsale consideration and was not in a x'Vposition to take the sale deed even though defendant '* {was willing to hand over possession of the property. '2eg,"-:: In 'view' of our finding on appreciation of llevidence of PW-l & 2 and the documents relied upon by 6/ 32 the parties, now we have to consider to what extent the judgments cited by the respective advocates would help their respective cases.
25. Learned counsel for the appellant has relied upon the following decisions: "
In the Case of H.p.éy;§sja§ ve}abaé&§§a (dead by L.Rs) and Others, reipogrtedllliln|V?a?Q06lVV2 495, the Apex Court has held that section ¢§{¢) of the Specific Relief Act mandates that the plaintiff must aver in the plaint and also estahlish=as ii fact by evidence a1iundelK that lfie i355 "always ready and willing to perform his part §£ the contract.
d26; =u H_Ing the case of Narinder Kumar Malik vs. su}.-::§5dce;?" Malik, reported in (2009) 3 scc 743, fie when the respondent did not tender original pay orders
-{ hut produced only photocopies, it was held that the "gp=mere show of readiness and willingness would not "discharge obligation, unless ii: is shown to be real av' 33 and genuine. The conduct, attitude and behaviour of the purchaser can be looked into to find out as to whether he was ready and willing to perfonn his part of the contract. The aforesaid decisiens are efiyosite to the facts and circumstances of the presentfcase{;'
27. In the case loft daraswethiiwflfinmaldh Vs. V.C.Lingam, reported in IflR iii? Karnataka 427, it has been held that seeking specific performance muss plead and figgve ehat he was ready and willing td serfbeg his part of contract continuously between the gas; u§=§fie contract and date of hearing of the suit; :ii¢¢*fi§s§e himself ready and willing a purchaser has not necessarily to produce the money or «to fyou€h",a concluded scheme for financing the itgangaetiafi; git is essentially a qnestion of fact to be answered from the material on record read with the 'i2 proved= circumstances of the case. The burden of ftiproving the readiness and willingness to perform his l* part of contract is entirely on the plaintiff and he <'>/ 34 cannot succeed in his claim for a decree for specific performance, by establishing that the vendorldefendant was avoiding to perform the contract. went on to say that the defendant's failuxie' for the suit, but to succeed' has to prove readiness and involves proof of capacity.» requires proof of financia1v,.,apili,ty' areleviant point of time. It is not'kHi'a_" but a genuine willingness. may justify an inference the plaintiff as to his assertion and as a fact, " that he was really interestedinvprocrastination because delay to his «advanta§te."i' The""'s'aid decision is squarely applicable the present case.
:"23 if Another decision of this court in the case of e.«'iiIV§'£{.;.(:§'iriraja Shetty Vs. N.K.Parthasarathy Setty & <5' 35 Others reported in AIR 2006 Karnataka 180 is also to the same effect.
29. Learned counsel for the 'respondentilhas referred to the following decisicne in support of his contentions:
In Ramachandra fiuikarnitfheadi by~LfRs 1993 Supp (3) SCC 549 and Azhardsnitana_v%fi$gBajamani & Others, reported in been cited to contend that the entirewarount of consideration need not be hebt g§éé§ fly the plaintiff, in order to prove readiness "and Iniilincness to perform the contract.
There can be no second opinion on the said proposition t. of Ian} but the piaintiff must prove that he has the 1capacity to raise the funds to purchase the property it even if he does not have the entire sale consideration diW ready: :This has not been proved by the plaintiff in 'X the instant case.
(V 36
30. In the case of Rameshwar Prasad (D) by L.Rs. vs. Basanti Lal, reported in AIR 2008 SC 2059, it has been held that it is not correct to refuse Eecree of specific performance on the ground that wiiiifisfiegs to pay the interest is not averred"wheress in tthe case of S.S.Mohammed Quadrippw _ reported in AIR 2000 .3]:i§;r§tated"'that readiness and willingness gees npt be stated in any specific phraseology end ia§éue§§Q. j
31. ushakuntla Devi Vs. M/s Mbhanlal"snritl§ajflJainAfiartet Pali, reported in AIR 1994 Rajasthan f59"dfi; has been stated that if were fixation off date7 for execution of sale deed is A: inaicagsag then tine is the essence of the contract Aparticularlygwhen the said date was extended from time x, to timg~and the question of payment of balance price i"< arises only when seller has performed his part of the dccntract. In the said case when there was a failure ."' R"i_b§ the seller to obtain income tax clearance ('V 37 certificate, it was held that the purchaser need not prove his financial position to pay balance price. He had merely to show continuous and willingness to pay balance price appropriate action for the barilste said decision is not applicai:Vle--A.A_V_tVo case since in the present had categorically stated~..V_that""he'; to execute the sale deed on his reply vide Ex.P4 and tha~t":he- "to hand over vacant posses sion .
32. Pandurang Ganpat Tanawade Vs. Ganpayf: ,Bha'i.'ruV Ka*da'm Others, reported in AIR 1997 SC has heer:--~"held that the plaintiff not only plaint, but also stated in his evidence before .the__:5:court that he has sent notices to the ".sellertt,_hat he was willing to pay the fees required ":d::Eo_rd""~sale deed and cost of registration and balance sagle amount immediately, it was held that the buyer 627/ 38 had not only averred but had proved that he was ready and willing to perform his part of the contract as required under Section 16(c) of the Acts fhofiever, in the instant case there is no evidence vithraegard to the plaintiff being ready and willing to purchase the Suite Schedule Property.V In :;¢£,n§V§vide5ea with regard to the availability 3 ofidgxhalance '=sa1e consideration is let in by the fi1ainti££,}
33. In the case of fimharma Devi @ hmnorama Devi Vs. Gango béfii E éangia save & Others, reported in AIT 1997 Patna 19, $11 that has been stated is that when the plaintiff has nede sufficient averments regarding willigr-.gness" her part of the contract by aservihgfinotice through advocate and was ready to pay 'un¢,$m§ugt and went to the defendant's house to make payment.hefiore filing of suit are matters pertaining gsectniton 16 of the Act.
5/ 39
34. In the case of Mhshtaq Ahmed Delvi Vs. Smt.J.Dhana.mmal reported in ILR 197.9 Karnafzaka 1997 what has been stated is that by virtue of Section 27 of the Urban Land (Ceiling & Regulation} Act; i916} an agreement to sell is not rendered void nor is itfay nullity. All that is required:"--underV_~_iA is that the vendor should ap§iy'for permission under the said Section from the Soflfieteht authoritf and in case permission is refused the filaintiffi is not entitled to specific perferfianee of contract; but Section 27 does not prohibit jany 'sale; "abThe* said decision is not applicable to the facts of the present case.
35. 5., In the case or K.Gajendran Vs. Chikkathimma & l_dthers;;Vxeported ddddd win ILR 2007 Karnataka 4440, a fii§:g1¢aT;sefi¢§« of this court held that since the it defendants had failed to prove that they should obtain u"5lVtheyytippani copy of the schedule from the survey lldebartment and further had got the land poded by the E"de§artment, thereby the actual area available for sale 8/ 40 was not confirmed and the balance sale consideration payable was not worked out and therefore, the defendants could not contend that the plaintiff was not ready and willing to pay thel balance 'sale consideration. On the facts"wof"«the .;:.-'_Aa?i'd_ court held that it was on account of default on the part of the defendants, the sale tgansséfiibfi was not completed. Considering the facts of thé'§resent case, the said decision is not anblicable as in the instant case, the plaintiff knew the exact amount of balance consideration¥teFbe--fiaidlwlwl
36. tln'the case of Aniglase Yohannan Vs._Ramlatha & Othe::s,_ reported '.-LnV"'1';IP. 2095 sc 3503, the undisputed h_facts were that the plaintiff had not only averred éhaegfiefwgs ready and willing to perform his part of ft the contract, but the balance amount of consideration W"nbFwasTdenosited in court simultaneously to the filing of lfthe* suit. Therefore, it was held that the order {V 43 decreeing suit for specific performance in favour of the plaintiff would be proper.
37. Considering the fact that cthe.jjudgments relied upon by the counsel "for5 the g;ésgofiaént4, plaintiff are no way applicablei to "the .£§ct$._and' circumstances of this l'cas¢ das ',thelU facts '"and circumstances of the' present _case"»are entirely different than the facts invelvea in various decisions relied upon view that those judgments cited hp the counsel.for the respondent are of no assistance to htnfirh the judgment and decree of the trial court;lid' l 2
38. p__Inlthe.circumstances, the appeal is allowed. ,fifidgment and decree of the trial court in directing the defendant to execute the saie deed and to hand dw=over possession of the property is rejected. However, ufinconsidering the fact that the plaintiff has paid a sum l'oEd3s.lD,61,000/-- as advance on 11.12.2002 as the same d"has been made use of by the defendant, we are of the 45' 42 opinion that the advance sale consideration received by the defendant from the plaintiff is ordered to be refunded to the plaintiff with interest at 15% from 11.12.2002 which amount shall be deposited before the court below on or before three months fromvtodaytfiui. Considering the backgroond"*o£«.thie_ case; due! direct the parties to bear their costs; _"
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