Karnataka High Court
Javaregowda vs Lakshmamma on 7 June, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
R.S.A.No.1318/2010
BETWEEN:
JAVAREGOWDA
S/O KARIGOWDA,
AGED 67 YEARS,
R/O CHIKKONAHALLI,
KASABA HOBLI, K.R. PET TALUK,
MANDYA DISTRICT. ..APPELLANT
(BY SRI K.N.NITISH, ADVOCATE FOR
SRI K V NARASIMHAN)
AND:
LAKSHMAMMA
W/O LATE NARASAIAH,
SINCE DEAD BY LRS
a) RAMESH
S/O LATE NARASAIAH AND
LAKSHMAMMA
AGED ABOUT 40 YEARS
b) MANGALA
D/O NARASAIAH AND LAKSHMAMMA
AGED ABOUT 30 YEARS
c) SUBADRA
D/O NARASAIAH AND LAKSHMAMMA
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AGED ABOUT 35 YEARS
d) MANJULA
W/O NARAYAN
MAJOR
e) RAJESHWARI
D/O NARAYAN
MAJOR
f) SAVITHA
D/O NARAYAN
MAJOR
g) SANTOSH
S/O NARAYAN
MAJOR
h) YASHODAMMA
W/O RAMACHANDRA
MAJOR
i) ROOPA
D/O RAMACHANDRA
MAJOR
j) DEEPU
D/O RAMACHANDRA
MAJOR
ALL ARE R/O BASAVANAGUDI BEEDI,
K.R.PET TOWN, K.R.PET TALUK,
MANDYA DISTRICT ..RESPONDENTS
(BY SRI M S SIDDARAJU & SRI M S GIRISH, ADVOCATES
FOR R-1(a) to (j))
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED:09.02.2010
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PASSED IN R.A.NO.12/2009 ON THE FILE OF THE ADDL.
DISTRICT JUDGE, MANDYA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED:
23.09.2008 PASSED IN O.S.NO.3/2007 ON THE FILE OF
THE CIVIL JUDGE (SR.DVN.)AND J.M.F.C.,
KRISHNARAJAPET.
THIS RSA COMING ON FOR FURTHER HEARING AND
DISPOSAL THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appeal is directed against the Judgment and decree dated:09.02.2010 passed in R.A.No.12/2009 by the Additional District Judge, Mandya, wherein appeal came to be allowed and Judgment and decree dated 23.09.2008 passed by the learned Civil Judge, Senior Division and JMFC, K.R.Pet in O.S.No.3/2007 was set aside.
2. Initially suit filed by the plaintiff for specific performance was decreed. Defendant being aggrieved by the Judgment and decree of the trial court filed R.A.No.12/2009 wherein appeal was allowed and suit of the plaintiff came to be dismissed by the first 4 appellate court. Hence, the present second appeal by the plaintiff.
3. Suit was one for specific performance of the sale agreement dated 25.01.2006 wherein agricultural land bearing Sy.No.69/1 of Chikkonahalli Village, Kasaba Hobli, K.R.Pet to an extent of 3 acres 25 guntas was agreed to be sold by the defendant to the plaintiff and an amount of Rs.42,000/- was said to have been paid by the plaintiff out of the total sale consideration of Rs.4,00,000/- and plaintiff agreed to pay balance amount of Rs.3,58,000/- to the defendant within three months from the date of sale agreement and as the sale deed was not executed by defendant in time plaintiff got issued notice for specific performance from the defendant. Plaintiff also claims that he was ever ready and willing to fulfill his part of obligation under the sale deed. The plaintiff claims to have paid total amount of Rs.3,58,000/- to the defendant. 5 Thus, as on the date of filing of the suit the claim of the plaintiff was that he had paid the full sale consideration of Rs.1,43,000/- (mortgage amount Rs.58,000/-, interest Rs.43,500/- and total Rs.1,01,500/- apart from the advance amount of Rs.42,000/-). Thus, the total amount paid towards sale consideration of Rs.4,00,000/- is Rs.1,43,500/-.
4. The defendant entered appearance and denied the execution of sale agreement claimed by the plaintiff. It is also claimed by the defendant that previously the defendant had entered into mortgage of the schedule property with the plaintiff to secure an amount of Rs.58,000/- on 13.11.2003 and she claims that she repaid the same by clearing the mortgage amount and states that the plaintiff has played mischief in between the said mortgage and alleged sale agreement.
5. The defendant also takes exception to the conduct of the plaintiff and that there is no whisper 6 regarding mortgage dated 13.11.2003 marked as Ex.P-1 executed by defendant. Apparently execution of mortgage is not mentioned in the sale agreement. It is also claimed that there was no reason to suppress a registered mortgage.
6. Defendant also contends that plaintiff has played mischief in concocting the mortgage deed and has taken undue advantage of the weak position of the defendant at one stage of imagination in the written statement. At the same time, the defendant contends that she has cleared the amount of mortgage.
7. Learned trial Judge was accommodated with the oral evidence of PW-1 to PW-3 and documentary evidence Ex.P-1 to P-6 on behalf of the plaintiff and oral evidence of DW-1 on behalf of the defendant. After appreciation of evidence trial court decreed the suit of the plaintiff.
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8. The key documents are Ex.P-1 -Mortgage and Ex.P-2 -Sale agreement.
9. Learned counsel for appellant would submit that the defendant though has denied the mortgage as having not executed by her but states that she has paid back the mortgage amount to the plaintiff. Thus, the defendant is blowing both hot and cold at the same time. It was also submitted that the plaintiff entered into mortgage as long back as on 13.11.2003 wherein the entire schedule property was mortgaged for securing a loan of Rs.58,000/- and the defendant was supposed to clear the mortgage amount. It is suit for specific performance that was filed against the defendant by virtue of sale agreement dated 25.01.2006.
10. Learned counsel for appellant would submit that no suit for foreclosure or recovery of money is being 8 filed against the defendant. Learned counsel also would submit that the amount of advance was mentioned as Rs.42,000/- out of sale consideration of Rs.4,00,000/- and the balance amount payable as on the date of sale agreement dated 25.01.2006 was Rs.3,58,000/-. However, plaintiff assumed by calculating the amount payable to the defendant as Rs.3,52,000/- regard being had to the fact that the mortgage amount for the schedule property being Rs.58,000/- and interest accrued thereon is Rs.43,500/- on the date of filing of the suit. Thus plaintiff claims the total amount payable towards the sale of the schedule property being Rs.4,00,000- Rs.1,01,500/-.
11. Learned counsel for respondent is absent.
12. It is seen that the defendant in the trial court has contended in the written statement and also 9 adduced evidence to the effect that plaintiff hands are not clean for the very reason he has suppressed the mortgage dated 13.11.2003 in the sale agreement dated 25.01.2006.
13. This court has raised the following substantial questions of law on 05.04.2014 as under:
"One of the attesting witnesses to the sale agreement dated 25.01.2006 -Ex.P2 said to be that of K.N.Ramesha, son of the Executant as elicited in the cross examination of PW.1, whether the Lower Appellate Court recorded perverse findings that execution of Ex.P2 was not proved so as to reverse the finding of the Trial Court and dismiss the suit for specific performance?"
In the circumstances of the case it is necessary to frame the following substantial questions of law:
1. "Whether in the circumstances of the case non appointment of court commissioner proved fatal?
2. Whether the defendant was under obligation to establish the separate plea regarding mischief played by plaintiff at the time of mortgage deed.10
3. Whether the conduct of the defendant is to be reckoned to assess her stand as an additional circumstance?
4. Whether non-mentioning of mortgage in the sale agreement -Ex.P-2 amounted to suppression on the part of the plaintiff?"
14. Learned counsel for appellant would submit by virtue of amendment to the Specific Relief Act, 1963, the observations made against the plaintiff by the trial court and the first appellate court are not sustainable.
15. Plaintiff claims that the Sale Agreement was executed in his favour on 25.01.2006. One of the prime contention by the defendant is, if the mortgage dated 13.11.2003 was entered into, the plaintiff has not mentioned the same in the Sale Agreement, Ex.P2 dated 25.01.2006. It was expected on the part of the plaintiff to mention about the registered mortgage deed as he has deducted the amount of Rs.1,01,500/- or goes to the extent of claiming the said amount was 11 paid by him. Even had he stated that he has paid debt of mortgage deed which also is disputed. The plaintiff claims that the amount stated therein in the form of mortgage money of Rs.58,000/- plus interest of Rs.43,500/- amounting to Rs.1,01,500/- was not paid. Admittedly, on the overhand, it is the equation of the plaintiff that Rs.58,000/- (mortgage money) plus Rs.43,500/- (interest) was literally is the amount with the defendant. The plaintiff cannot decree his own claim by himself and claim that he has paid the amount. However, in the context and circumstances of the case, the cumulative effect of non mentioning of the Mortgage Deed in the Sale Agreement cannot act prejudicial to the defendant as the Mortgage Deed is a registered one and the amount payable was to the plaintiff. Thus, in the circumstances, the result of the said mortgage, in case it is denied is that, plaintiff would have to pay back the mortgage amount and it is 12 the duty of the plaintiff to execute the discharge deed. Thus, the scope and domain of mortgage is totally different from the scope of specific performance. In the circumstances, I do not find there is too much to read in respect of non mentioning of the mortgage deed.
16. Further, the plaintiff is one Javaregowda and the defendant is one Lakshmamma. She also has a son by name Ramesh who is said to be one of the witnesses to the agreement Ex.P2. The terms of Sale Agreement dated 25.01.2006 are stated above. The time limit stated in the Sale Agreement for executing the registered Sale Deed is three months irrespective of the mandate of Section 20 of the Specific Relief Act, 1963, either plaintiff or defendant or the parties may be. It has been simplified that both the parties are supposed to be ready and willing to perform their duties. On the other hand, provisions of discharge of 13 contract, the background status would assume ground. However, the Sale Agreement was entered into by the plaintiff in order to counter the marriage expenditure of her grand daughter Rajeswari. The total sale consideration is Rs.4.00 lakh, advance amount is Rs.42,000/- and balance payable is Rs.3,58,000/- and the time limit is three months.
17. By virtue of amendment to Section 20 of the Specific Relief Act, 1963, the substance regarding ready and willing is highlighted as under:
"10. For section 20 of the principal Act, the following sections shall be substituted, namely-
"20(i) Without prejudice to the generality of the provisions contained in the Indian Contract Act, 1872, and except as otherwise agreed upon by the parties, where the contract is broken due to non-performance of promise by any party, the party who suffers by such breach shall have the option of substituted performance through a third party or by his own agency, and recover the expenses and other costs actually 14 incurred, spent or suffered by him, from the party committing such breach.
(2) No substituted performance of contract under sub section (1) shall be undertaken unless the party who suffers such breach has given a notice in writing, of not less than thirty days, to the party in breach calling upon him to perform the contract within such time as specified in the notice, and on his refusal or failure to do so, he may get the same performed by a third party or by his own agency;
Provided that the party who suffers such breach shall not be entitled to recover the expenses and costs under sub section (1) unless he has got the contract performed through a third party or by his own agency.
(3) Where the party suffering breach of contract has got the contract performed through a third party or by his own agency after giving notice under sub section (1), he shall not be entitled to claim relief of specific performance against the party in breach.
(4) Nothing in this section shall prevent the party who has suffered breach of contract from claiming compensation from the party in breach."
18. Further, the proof of execution of Sale Agreement from all its angle will have the effect in its 15 own kind over the rights and duties of the parties connecting to the suit for specific performance.
19. The next aspect is, the execution of the agreement part. It is noted that defendant Lakshmamma is illiterate and affixes her left thumb impression. It is also available on the Sale Agreement.
20. Insofar as the entire written statement is concerned, defendant Lakshmamma has denied the sale agreement and the mortgage document under Exs.P2 and P1 respectively. According to her, the plaintiff has filed the suit with the help of false or fabricated documents to grab the property. She calls it a conspiracy by the plaintiff. She claims that the schedule property is worth Rs.10.00 lakhs. She further contends that the plaintiff has got the Sale Agreement (by creating). The defendant is not due any amount to the plaintiff. It is also stated by her that the plaintiff 16 has received the full amount of mortgage from the defendant stating that she would be cancelling the mortgage and that has stooped to the level of this. In the circumstances, nothing prevents the defendant to take inconsistent plea, but she cannot go to the extent of disruptively pleading it. At one stretch of imagination defendant tells that she has not executed any Mortgage Deed and contextually she says that the plaintiff received the entire mortgage amount from her but has not returned the title deed. In the circumstances, it is also to be remembered that no proceedings are initiated by the defendant against the plaintiff.
21. Insofar as the Left Thumb Impression of the defendant is concerned, there are four phases in examining it. First one is, plaintiff asserts that LTM on Ex.P1-Mortgage Deed and Ex.P2- Sale Agreement were affixed by the defendant. Insofar as Ex.P2 is 17 concerned, that is not a big issue as though it was denied under the written statement, contextually defendant admits that she had paid the full mortgage amount, but the plaintiff misused the mortgage deed and has not returned the same.
22. Another phase is, defendant's evidence on oath she being examined as DW1, she has filed written statement denying the claim of the plaintiff in respect of Sale Agreement. However, it is pertinent to note that even in her affidavit in lieu of Chief examination, she states that she had borrowed an amount of Rs.58,000/- from the plaintiff and executed the Mortgage Deed in respect of the schedule property. But the plaintiff having received the mortgage amount had not returned the Mortgage Deed. Thus, there is nothing to consider further on the Mortgage Deed. The admission part is not disputed by the defendant and regarding payment of mortgage money is concerned, 18 she asserts payment and plaintiff denies. Further aspect of the matter is, mortgage redemption or suit for specific performance or foreclosure are not domain of the present case. Thus, this aspect is important in the context and circumstances of the case.
23. Now insofar as third phase is concerned, defendant was subjected to cross examination as DW1 (it is wrongly typed as PW.1) and mistake has aggravated by the Presiding Officer not noting whether it is PW or DW and ascribing his signature. During the cross examination, she admits the mortgage of the schedule property. Her son Ramesh is doing good with her. At the time of repayment of mortgage money her daughters Subhadra and Mangalagowry were present.
24. Insofar as her thumb impression is concerned, she is mum. Nor plaintiff bothers about the same to carry further.
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25. The fourth phase of denial is, the LTM of defendant is not specifically denied. But her LTM is denied only during cross examination. The trial Court finds that the defendant denied the execution of Ex.P2 and is a concocted document and she has denied her LTM. In the assertion of a fact, it must be specific and certain. Merely if there is denial and evasive or vague denial cannot be graded to be a substantial denial by means of suggestions during the cross examination of the plaintiff and it is not complete denial.
26. Nodoubt, the plaintiff so far has not taken steps for recovery of money if it was due under Ex.P1. However, it is the contention of the defendant that she has settled the mortgage amount. Nodoubt, three months was the time that was agreed for specific performance of the agreement. The date of execution being 25.01.2006, but the suit is filed on 03.01.2007. 20 Notice by the plaintiff is given as per Ex.P3 on 16.10.2006 and the suit is filed on 03.01.2007. Thus, whether issuing notice or filing suit was not within time stipulated. However, suit was filed within agreed period of three months. In this connection, it is necessary to mention the amendment to Section 16 of the Specific Relief Act, which is as under:
"7. In Section 16 of the principal Act,
(i) for clause (a), the following clause shall be substituted, namely:-
" (a) who has obtained substituted performance of contract under section 29; or":
(ii) in clause (c), -
(I) for the words "who fails to aver and prove", the words "who fails to prove" shall be substituted (II) In the Explanation, in clause (ii), for the words "must aver", the words "must prove" shall be substituted.
27. It is necessary to place on record, in the facts and circumstances of the case, the defendant does not 21 appear to have made fair submissions. She denies Sale Agreement and Mortgage Deed. However, says the plaintiff has not returned the Mortgage Deed despite discharge of the mortgage. Insofar as sale consideration is concerned, what was paid under the Sale Agreement under Ex.P2 is Rs.42,000/- against sale consideration of Rs.4.00 lakh. The learned counsel for plaintiff would submit that the amount claimed is Rs.1,01,500/- and it is the plaintiff who has given set off against the advance payable, thus, acted as a Judge in his own case. As stated above, the nature and scope of the suit for specific performance is totally different from that of the mortgage. The schedule property may be the same and the parties. Thus, regarding mortgage the point that occur is defendant contends that the plaintiff has not stated the same under the sale agreement. However, by 22 virtue of the same, the rights, duties of either parties are not diluted.
28. The second instance is, at the end, Mortgage Deed is not disputed. Whether the suit for redemption or foreclosure as the case may be will take care of the claim of the mortgagee. The plaintiff cannot reap benefits under the suit for specific performance. Thus, be it a pleading, evidence or submission, they cannot be allowed to get recognized. Thus, plaintiff cannot say that the balance amount payable under the sale agreement is the outstanding amount of Rs.1,01,500/- in this suit is not tenable nor such adjustment is made.
29. The possession is said to be with the defendant. She denies the mortgage deed and later approves the execution of the Mortgage Deed. The denial of LTM is neither serious nor substantial. However, the First Appellate Court seriously erred in allowing the appeal 23 filed by the defendant and dismissing the suit of the plaintiff. Needless to say, the trial Court through its sound reasoning has come to a right conclusion. In the circumstances, the judgment and decree passed by the first Appellate Court is liable to be set aside. The substantial questions of law are answered accordingly.
30. In the result, appeal is allowed.
The Judgment and decree dated 09.02.2010 passed by the First Appellate Court in R.A.No.12/2009 is hereby set aside. Consequently, the Judgment and decree dated 23.09.2008 passed by the learned trial court in O.S.No.3/2007 is hereby confirmed.
Sd/-
JUDGE SBN/tsn*