Karnataka High Court
Shankargouda vs K.Tayikumari on 18 February, 2020
Equivalent citations: AIR 2020 (NOC) 908 (KAR.), AIRONLINE 2020 KAR 1532, 2020 (4) AKR 168
Bench: P.B.Bajanthri, Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR. JUSTICE P.B. BAJANTHRI
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR FIRST APPEAL NO.100171 OF 2015 (SP)
BETWEEN:
1. SHANKARGOUDA
W/O LINGANAGOUDA,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURIST
2. SMT. HAMPAMMA
W/O LATE SHANKARGOUDA
AGED ABOUT 41 YEARS,
OCC: AGRICULTURIST
3. BHEEMANAGOUDA
S/O SHEKARGOUDA
AGED ABOUT 58 YEARS,
OCC: AGRICULTURIST
4. SHARANABASAVA
S/O MAHADEVAPPA
AGED ABOUT 37 YEARS
OCC: AGRICULTURIST
5. SMT. CHANNAMMA
W/O MAHADEVAPPA
2
AGED ABOUT 67 YEARS,
OCC: AGRICULTURIST
6. AMARESH
S/O MAHADEVAPPA
AGED ABOUT 35 YEARS
ALL ARE RESIDING AT
EAKKARANAL VILLAGE,
POST NEGALAPUR,
TALUK LINGASUGUR,
DISTRICT RAICHUR
...APPELLANTS
(BY SRI. MALLIKARJUNASWAMY B. HIREMATH,
ADVOCATE)
AND:
SMT. K.TAYIKUMARI
W/O KALIVARAPRASAD
AGED ABOUT 51 YEARS,
OCC: AGRICULTURIST AND HOUSEWIFE,
R/O. GANGAVATHI,
DISTRICT KOPPAL.
.... RESPONDENT
(BY SRI. S.H.MITTALKOD, ADVOCATE)
THIS APPEAL IS FILED UNDER ORDER XLI RULE 1
READ WITH SECTION 96 OF THE CIVIL PROCEDURE
CODE, 1908, AGAINST THE JUDGMENT AND DECREE
DATED: 30.04.2015 PASSED IN O.S. NO.12/2009 ON THE
FILE OF THE SENIOR CIVIL JUDGE AT GANGAVATHI,
DECREEING THE SUIT FILED FOR SPECIFIC
PERFORMANCE OF CONTRACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 17.12.2019 AND COMING ON FOR
3
PRONOUNCEMENT THIS DAY NATARAJ RANGASWAMY J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the defendants challenging the Judgment and Decree dated 30.04.2015 passed by the Senior Civil Judge, Gangavathi, in O.S. No.12/2009 by which the suit for specific performance was decreed.
2. For the sake of easy understanding, the parties in this judgment are referred to as they were arrayed before the Trial Court. The appellants were the defendants while the respondent was the plaintiff before the Trial Court.
3. The suit filed by the plaintiff for specific performance of the agreement of sale dated 12.05.2008 discloses that the defendants were the owners of suit schedule properties and that they offered to sell the suit properties at the rate of Rs.45,000/- per acre 4 (aggregating to Rs.16,35,750-00) so as to meet their legal needs and to pay the outstanding loan at State Bank of Hyderabad (ADB), Gangavathi, which they had availed by mortgaging the suit properties. The plaintiff had paid a sum of Rs.2,12,000/- to the defendants on 12.05.2008, the receipt of which was acknowledged by the defendants by executing an agreement of sale of the suit schedule properties. The defendants had agreed to execute a deed of absolute sale by receiving the balance sale consideration of Rs.14,23,750/-, from the plaintiff within four months and after clearing the outstanding loan at State Bank of Hyderabad, Gangavathi. It is stated that the defendant No.2 had agreed to get her name entered in the revenue records, that then was in the name of her husband. The possession of the suit schedule properties was to be delivered after a survey of the land and at the time of execution and registration of a deed of sale. The plaintiff claimed that the defendants received a further sum of Rs.1,00,000/- on 04.09.2008 5 and acknowledged the receipt on the agreement in the presence of the witnesses. It is stated that the plaintiff approached the defendants with the balance sale consideration and requested them to execute and register the sale deed. However, the defendants dodged the execution of the sale deed on one or the other reason. Since the defendants failed to conclude the contract as agreed, the plaintiff got a notice issued on 11.05.2009 calling upon the defendants to execute and register a sale deed by receiving the balance sale consideration of Rs.13,23,750/-. It is stated that the notice so issued was received by defendant No.6 but the other defendants had purposely not received it and the same returned unserved with the endorsement that they were out of station. The plaintiff, therefore, sought for specific performance of the agreement and also sought for alternate relief of refund of the earnest money of Rs.3,12,000/- along with interest at 24% per annum from the date of agreement till realization. 6
4. The defendants filed their written statement contending that the title and right of each of the defendants was distinct and separate and the suit properties did not constitute one consolidated block of land. They also contended that they were near relatives but did not belong to one family as alleged and thus, they contended that there was no question of they executing a single agreement in favour of the plaintiff on 12.05.2008. They also contended that there was no mutuality between the defendants and the plaintiff. They also contended that they never agreed to sell the suit properties in favour of the plaintiff and did not receive any earnest money from the plaintiff as pleaded in the plaint. They claimed that the agreement of sale set up by the plaintiff was a fraudulent document created for the purpose of launching a false litigation. The defendants claimed that they never executed the alleged agreement in the presence of the witnesses and therefore, they stated that the agreement was set up to 7 harass the defendants. They also contended that they had sold the suit properties to different purchasers on 05.09.2009 and therefore, they claimed that the defendants were neither the owners nor possessed the suit properties as on the date of filing of the suit.
5. Based on the aforesaid rival contentions of the parties, the Trial Court framed the following Issues:
"1. Whether plaintiff proves that the defendants being owners of suit schedule properties have entered into sale agreement with her agreeing to sell the suit lands for consideration of Rs.45,000/- per acre to meet out legal necessities and executed sale agreement on 12-5-2008?
2. Whether she further proves that already she has paid part consideration amount as stated in plaint?
3. Whether she further proves that she is ever ready and willing to perform her part of contract?8
4. Whether defendants prove that suit schedule properties are not having common boundary and respective defendants are owners of item No.1 to 6 properties and also they sold suit properties to different purchasers vide registered sale deed dated 5-9-2009?
5. Whether plaintiff is entitled for suit relief as prayed?
6. What order or decree?"
6. On behalf of the plaintiff, the plaintiff was initially examined as PW.1, but was later given up and her evidence was discarded. PW.2 was the scribe of the agreement at Ex.P1 while PW.3 was the attesting witness and PW.4 was the husband of the plaintiff. They marked Exs.P1 to P28. While for the defendants, the defendant No.1 was examined as DW.1, defendant No.3 was examined as DW.2 and defendant No.6 was examined as DW.3 and they marked EXs.D1 to D17. The Trial Court considered the pleadings and the evidence on record and in terms of the Judgment and 9 Decree dated 30.04.2015, decreed the suit and directed the defendants to execute, convey and register a deed of absolute sale conveying the suit properties in favour of the plaintiff by accepting the balance sale consideration of Rs.13,23,750/-.
7. Being aggrieved by the aforesaid judgment and decree, the defendants are before this Court in this Regular First Appeal.
8. We have heard the learned counsel for the appellants and the learned counsel for the respondent. We have perused the records of the Trial Court and the pleadings, oral and documentary evidence. We have thoroughly examined the Judgment and Decree passed by the Trial Court and also considered the grounds urged in support of the first appeal.
10
9. The following points arise for our consideration:
1. Whether the appellants had executed the agreement of sale in favour of the defendant ?
2. Whether the plaintiff is entitled for specific performance of the agreement of sale ?
3. Whether the plaintiff is entitled for damages ?
We answer the aforesaid points as below:
10. Before we deal with the facts of the case, it is pertinent to place it on record that the Trial Court had on 11.08.2009 granted an ex-parte interim Order of temporary injunction restraining the defendants from alienating the suit properties. Since the defendants did not appear before the Court, they were placed ex-parte. The Plaintiff was initially examined as PW1 and she marked Exs.P-1 to P-24. Later the suit was decreed ex- parte on 11.03.2010. In the meanwhile, the defendants had allegedly sold the suit properties in terms of sale deeds dated 05.09.2009, the registration of which was 11 kept pending. The sale deeds were registered on 11.06.2010. Later, the defendants filed Civil Misc. Petition No.2/2010 before the Court of Civil Judge (Senior Division), Gangavati, on 17.06.2010 to set aside the ex-parte decree dated 11.03.2010. The ex-parte decree was set aside by the Trial Court on 23.07.2013 and the defendants filed their written statement on 21.09.2013. The plaintiff did not choose to implead the purchasers.
11. The plaintiff marked the agreement of sale as Ex.P1. The RTCs of the suit properties were marked as Exs.P2 to P8. The notice of demand for conclusion of the sale was marked as Ex.P9 and the corresponding postal receipts were marked as Exs.P10 to P15. The unserved postal covers were marked as Exs.P16 to P20. Ex.P21 was the postal acknowledgement. Exs.P22 and P23 were the certificates of posting. Ex.P24 was the reply issued by the defendants 4, 5 and 6. After PW4 was examined, 12 he marked Ex.P25 which was the power of attorney, Ex.P26 which was the medical certificate of the plaintiff. Ex.P27 was the copy of civil miscellaneous petition No.2/2010. Ex.P28 was a copy of the agreement entered into between the defendants and purchasers.
12. In order to prove the execution of Ex.P1, the attesting witness was examined as PW2. He deposed that he had seen the suit properties and specifically stated about the holding of each of the defendants and also identified the survey numbers of the properties held by each of the defendants. He stated that he was present when the plaintiff negotiated with the defendants for sale of the schedule properties. He deposed that on 12th of May 2008, the defendant Nos.1 and 6 another attesting witness Sri.Vishwanath, Sri.Jagannath Kulkarni and Sri.Gangappa had assembled at the office of the advocate Sri Vivekanand. He also stated that the 3rd defendant instructed the 13 terms of the agreement as per which the agreement was prepared on two stamp papers of Rs.100/- each and one white sheet. He also stated that one Sri.Amaresh (Defendant No.6) obtained the stamp paper in his name. He further stated that the agreement was drafted in the Computer and the defendants, PW2 and one Gangappa and Smt.Tayikumari signed the agreement. Later, Sri.Kali Varaprasad and Smt.Tayikumari paid Rs.2,12,000/- to defendant No.3 and the other defendants had no objection for defendant No.3 to receive the amount. This witness also deposed that the total sale consideration was Rs.16,35,000/- of which Rs.2,12,000/- was paid and Rs.14,23,000/- was to be paid at the time of the agreement. He also deposed that the agreement has to be concluded within four months. He candidly stated that a sum of Rs.1,00,000/- was paid to defendant No.6 on 04.09.2008 in the office of the advocate Mr.Vivekanand. He stated that he was present when a sum of Rs.1,00,000/- was paid. He also 14 said to have seen the defendant No.6 acknowledging the receipt of Rs.1,00,000/-. He denied the suggestion that Ex.P1 was concocted in the house of the plaintiff. There is no inconsistency in the evidence of PW2, but his evidence is very authentic and sterling and deserves to be accepted.
13. PW3 is the advocate Mr.U.R.Vivekananada who deposed about the drafting and execution of the agreement. He stated that he prepared the agreement on the instructions of the plaintiff and the defendants. He stated that the parties had furnished the revenue documents of the suit properties. He deposed that the stamp paper for drawing the agreement was brought by defendant No.6 in his name. He further stated that defendant No.3 on behalf of the other defendants gave instructions to prepare the agreement. When questioned as to why he did not suggest the plaintiff to enter into separate agreement as the defendants had separate 15 revenue documents (pahanis), he deposed that all the suit properties measuring 36 acres 14 guntas lay within one compact block and that all the defendants were related to each other and that he therefore, did not feel it appropriate to advice the plaintiff to enter into separate agreements. He deposed that a sum of Rs.45,000/- per acre was the agreed consideration. He admitted that one of the attesting witnesses (Mr.U.R.Vishwanath) was his brother. He also deposed that Rs.2,12,000/- was paid by the plaintiff to the defendants as part of the sale consideration and defendant No.3 received the same. He specifically denied the suggestion that the blank stamp papers on which the signatures of the defendants were obtained for the purpose of clearing loan was misused by the plaintiff to create agreement. In his own words he stated as follows:
"ªÁ¢ SÁ° ¸ÁÖA¥À£ÄÀ ß vÀAzÀÄ ¸Á® ªÀÄ£Àß ªÀiÁr¸ÀĪÀÅzÁV ºÉý £ÀA©¹ ¥ÀæwªÁ¢AiÀÄgÀ ¸À»AiÀÄ£ÀÄß 16 ¥ÀqÉzÀÄPÉÆAqÀÄ £À£ßÀ ªÀÄÄSÁAvÀgÀ PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß ¸ÀȶֹPÉÆArgÀÄvÁÛgÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
14. The husband of the plaintiff who was examined as PW4 also stated about the transaction. The attempts of the defendants to prove that PW4 had no knowledge of the transaction were spurned by the clear and candid evidence of PW4. He spoke about the entire transaction from the day it was finalized till the date of execution of Ex-P1 and also the subsequent payment made. His evidence gives a clear picture that he actively participated in the sale talks and also in the execution of the agreement of sale.
15. When the evidence of DW.1 is examined, he stated that the defendants were close relatives. DW.1 claimed that he was deposing for himself and also on behalf of the defendant No.4. He admitted that Sy. Nos.105, 107 and 108 lay adjacent to each other. He identified and admitted his signature and also the 17 signature of defendant No.4 on Ex.P1 which were marked as Exs.P1(a) and P1(d). Likewise, DW2 claimed that he was deposing on behalf of himself and defendant Nos.2 and 5. DW.3 on the other hand deposed and identified his signatures on Ex.P1, which were marked as Exs.P1(f) and 1(l).
16. The defendants suggested to PW3 and PW4 that the signed blank papers were used by the defendant No.3 in conspiracy with PW3 and PW4 to fabricate the agreement in question. PW.3 in his cross- examination has denied the suggestion that blank stamp papers that were signed by the defendants were handed over to him and that the same were misused and an agreement was concocted. The defendants were unable to establish the contention that they had handed over the signed blank papers to PW.3.
17. The defendants 4, 5 and 6 had issued their reply as per Ex.P24 in which they claimed that they had 18 handed over signed blank papers to defendant No.3 since he had represented that the loan they had raised from the bank was waived by the Government and that the bank would accept the waiver only if a written request was submitted to the bank. Thus it was claimed that the defendant No.3 had conspired with the plaintiff in bringing about Ex-P1 using the papers signed by them. This was however not the case as pleaded in the written statement filed by the defendants.
18. The afore stated evidence would categorically prove that the signatures found on Ex-P1 were the signatures of the defendants. It is rather strange as to how the defendants 4, 5 and 6 who had earlier accused the defendant No.3 of conspiring with the plaintiff in bringing about Ex-P1, joined the other defendants in filing a common written statement. A perusal of Ex-P1 instills a sense of regularity in the execution of Ex-P1 and there are no apparent mistakes and there is 19 nothing amiss about the transaction. Having regard to the above, we hold that Ex-P1 was lawfully executed for consideration and that the defendants had received a sum of Rs.2,12,000-00 on the date of the agreement. Similarly, the DW.3 identified his signature on the overleaf of Ex-P1 and therefore, the receipt of a further sum of Rs.1,00,000-00 was admitted by the defendants. Thus in all the defendants having executed Ex-P1 had received a sum of Rs.3,12,000-00 from the plaintiff towards sale of the suit properties.
19. In so far as the question as to whether the plaintiff is entitled for the relief of specific performance, we are conscious that specific performance need not be granted merely because it is lawful to do so but we have to endeavor to see whether doing so would tilt the balance unduly or whether such an agreement is used to oppress the defendants. We are also conscious of the 20 fact that such exercise of discretion should not be arbitrary or perverse.
20. The Apex Court has time and again emphasized the need to specifically prove the readiness and willingness on the part of the plaintiff in an action for specific performance. In the case of Ravi Setia vs Madan Lal reported in 2019 (9) SCC 381, it was held "9. There can be no straitjacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances. We are of the considered opinion, that in the facts and circumstances of the present case, the failure of the plaintiff to offer any explanation why the balance consideration was not deposited within the time granted, the filing of the application for extension of time after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the application for extension that the money would lie in the bank without earning interest, are all but evidence of incapacity 21 on part of the plaintiff to perform his obligations under the agreement and reflective of lack of readiness and willingness. He preferred to wait and abide by the gamble of a favourable decision in the first appeal.
10. The grant of relief for specific performance under Section 16 (1)(c) of the Act is a discretionary and equitable relief. Under Section 16(1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the defendant did not 22 preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify nondeposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations."
21. Ex.P1 is an agreement executed by the defendants offering to sell 36 Acres 14 guntas in various survey numbers belonging to the defendants at a total cost of 16,35,750/-. It is stated in the agreement that "¸À¢æ d«ÄãÀÄUÀ¼À£ÀÄß £ÁªÀÅ £ÀªÄÀ ä ªÀÄ£ÉAiÀÄ CqÀZÀuÉAiÀÄ ¸À®ÄªÁV ªÀÄvÀÄÛ 23 E¤ßvÀgÀ SÁ¸ÀV ¸Á®UÀ¼À£ÄÀ ß wÃj¸ÀĪÀ ¸À®ÄªÁV ¥Àæw JPÀgÉUÉ gÀÆ.45,000- 00 (CPÀëgÀUÀ¼À°è gÀÆ. £À®ªÀvÉÛöÊzÀÄ ¸Á«gÀUÀ¼ÄÀ ªÀiÁvÀæ) gÀAvÉ EAzÉà ¤ªÀÄUÉ J®ègÀÆ PÀÆr PÉÆAqÀÄ MlÄÖ gÀÆ.16,35,750-00 (CPÀëgÀUÀ¼À°è gÀÆ. ºÀ¢£ÁgÀÄ ®PÀëzÁ ªÀÄƪÀvÛÉöÊzÀÄ ¸Á«gÀzÁ K¼ÀÄ £ÀÆgÁ LªÀvÀÄÛ ªÀiÁvÀæ) UÀ½UÉ RArvÀ RjâUÉ PÉÆlÄÖ, EAzÉà ¤«ÄäAzÀ ªÀÄÄAUÀqÀ ºÀt gÀÆ.2,12,000- 00 (CPÀëgÀUÀ¼À°è gÀÆ. JgÀqÄÀ ®PÀëzÁ ºÀ£ßÉ gÀqÄÀ ¸Á«gÀUÀ¼ÀÄ ªÀiÁvÀæ) UÀ¼À£ÀÄß ¥ÀqÉzÀÄ PÉÆArgÀÄvÉÛãÉ."
It is further stated "C®èzÉà ¸À¢æ d«ÄãÀÄUÀ¼À ªÉÄÃ¯É £ÀªÄÉ ä®ègÀ ºÉ¸Àj£À°è UÀAUÁªÀwAiÀÄ ¸ÉÖÃmï ¨ÁåAPï D¥sï ºÉÊzÁæ¨Ázï (J.r.©) ¨ÁåAPï£À°ègÀĪÀ MlÄÖ ¸Á® gÀÆ.11,37,851-00 (CPÀëgÀUÀ¼À°è gÀÆ. ºÀ£Æ É ßAzÀÄ ®PÀëzÁ ªÀÄƪÀvÉÛüÀÄ ¸Á«gÀzÁ JAlÄ £ÀÆgÁ LªÀvÉÆÛAzÀÄ ªÀiÁvÀæ) ¸Á® EzÀÄÝ, ¸À¢æ ¸Á®ªÀ£ÀÄß £ÁªÀÅUÀ¼É®ègÆ À EA¢¤AzÀ 4 wAUÀ¼À CªÀ¢üAiÉƼÀUÁV ZÀÄPÁÛ wÃj¹, ¸À¢æ d«ÄäUÉ ¸ÀA§AzsÀ¥l À Ö £ÀªÄÀ ä Rjâ ¥ÀvÀæUÀ¼À£ÀÄß, ªÀUÁðªÀuÉ DzÉñÀzÀ £ÀPÀ®ÄUÀ¼ÀÄ, ¸ÀgÀPÁgÀ¢AzÀ AiÀiÁªÀÅzÉà ¨ÁQ E®è¢gÀĪÀ §UÉÎ ¨ÉèÁQ ¥ÀæªÀiÁt¥ÀvÀæ, £ÉÆà mÉ£É¤ì ¸Ànð¦üPÉÃl, ¨sÀÆ »qÀĪÀ½ ¥ÀæªÀiÁt ¥ÀvæÀUÀ¼À£ÄÀ ß ªÀÄvÀÄÛ £ÉÆÃAzÀt PÀbÉÃjAiÀÄ°è ¸À¢æ d«Ää£À 24 ªÉÄÃ¯É AiÀiÁªÀÅzÉà IÄt¨sÁgÀ E®è¢gÀĪÀ §UÉÎ E.¹.AiÀÄ£ÀÄß vÉUɹ PÉÆqÀÄvÉÛêÉ."
One of the essential conditions of the agreement in question was as below:
"¸À¢æ ¤ªÀÄUÉ RjâUÉ PÉÆlÖ 36 JPÀgÉ 14 UÀÄAmÉ d«ÄãÀÄ ¸ÀjAiÀiÁV ¨sÆ À ªÀiÁ¥À£Á E¯ÁSɬÄAzÀ C¼ÀvÉ ªÀiÁr¹PÉÆqÀĪÀ dªÁ¨ÁÝjAiÀÄÄ £ÀªÄÀ äzÉà EgÀÄvÀÛzÉ. MAzÀÄ ªÉÃ¼É C¼ÀvÉ ªÀiÁqÀĪÀ ¸ÀªÄÀ AiÀÄzÀ°è d«ÄãÀÄ PÀrªÉÄAiÀiÁzÀ°è MAzÀÄ UÀÄAmÉUÉ gÀÆ.1,125-00 gÀAvÉ PÀrªÉÄ ªÀiÁrPÉÆAqÀÄ ºÀtªÀ£ÄÀ ß ¥ÀqÉzÀÄPÉƼÀî®Ä £ÁªÀÅUÀ¼ÀÄ J®ègÆ À M¦àPÉÆAqÀÄ F Rjâ PÀgÁgÀÄ ¥ÀvÀæPÉÌ ¸À» ªÀiÁrzÀÄÝ ¤d«gÀÄvÀÛzÉ."
Ex.P1 would reveal that the suit properties were sold by defendants, apparently to clear the loan that the defendants had availed and that the documents of title of the suit properties were pledged with State Bank of Hyderabad (ADB Bank) where a sum of Rs.11,37,851/- had to be paid. The defendants were required to obtain clearance of loan within a period of four months from 25 the date of the agreement. Thus, if the only source that the defendants had to close the loan, was by selling the suit properties, it does not sound practical that they could have got the loan cleared without the plaintiff paying the remaining consideration. If the plaintiff was a willing purchaser then, he would have paid the sale consideration to enable the defendants to close the loan.
22. In addition, the plaintiff had not placed on record any material to substantiate that he had the requisite funds within four months from the date of the agreement and /or till the date the present suit was filed. A perusal of the plaintiff exhibits would disclose that she had marked 28 documents: Ex.P1 is the agreement of sale; Exs.P2 to P8 are the RTC extracts; Ex.P9 is the legal notice issued by the plaintiff; Exs.P10 to P15 are the postal receipts; Exs.P16 to P20 are the returned postal covers; Ex.P21 is the postal acknowledgement; Exs.P22 and P23 are certificates of 26 posting; Ex.P24 is the reply issued by defendant Nos.4 to 6; Ex.P25 is the general power of attorney; Ex.P26 is the medical certificate issued by Fortis Hospital; Ex.P27 is copy of the miscellaneous petition in Civil Misc. No. 2/2010 filed by defendant Nos.1 to 3, 5 and 6 and Ex.P28 is the agreement of sale which was executed by defendant Nos.1,3 and 4 in favour of one Mohan Reddy. It is very evident that the plaintiff has not produced any material document to show that he was ready with the requisite funds. This is all the more important since the suit properties were offered to be sold by the defendants for the purpose of clearing the loan. One of the loans which was imminent to be cleared was the loan that the defendants had raised from State Bank of Hyderabad (ADB Bank). Even otherwise, if the defendants were not given the balance sale consideration within the time prescribed, it is not known as to how they could mobilize the funds for payment of the loan and obtain a clearance from the Bank. The plaintiff kept quiet for 27 more than four months from the date of Ex-P1 and thereafter issued the notice of demand (Ex-P9) on 11.05.2009 and the suit was filed on 11.08.2009. The defendants had by then sold the suit properties to strangers in terms of separate sale deeds on 05.09.2009, apparently to meet their legal necessities.
23. It is, therefore, clear that the plaintiff was not ready or willing to complete his part of the contract by tendering the balance sale consideration so as to enable the defendants to clear off the loan or to show before the Court that he had possessed the requisite funds for conclusion of the sale transaction. We are, therefore, constrained to hold that the plaintiff is not entitled for the relief of specific performance.
24. In so far as the question regarding the entitlement of the plaintiff for refund of the part of the sale consideration paid by him to the defendants, the agreement at Ex.P1 is sufficiently proved since the 28 defendants have admitted their signatures on Ex.P1. Though they have contended that they had signed blank stamp papers which have been utilized to concoct the agreement in question, the defendants are unable to establish the same before the Court. Even otherwise, looking at the agreement, there is nothing amiss and the agreement is executed in the normal course. It is seen from the agreement at Ex.P1 that the defendants had received a sum of Rs.2,12,000/- on the date of the agreement (12.05.2008) and on 04.09.2008, the defendant No.6 had acknowledged the receipt of a sum of Rs.50,000/- and again on 04.09.2008, the defendant No.6 had received another sum of Rs.50,000/-. Therefore, in all, the defendants have received a sum of Rs.3,12,000/- from the plaintiff. If the defendants have received the amount and are not willing to conclude their part of the contract, it is incumbent upon them to restore the advance that they have received from the plaintiff in the absence of any proof regarding any 29 damages and/or any justification for forfeiture of the amount in question. Since the defendants have been contending throughout that they had not received the amount, in view of our finding that the defendants had received a sum of Rs.3,12,000/-, we are constrained to hold that the defendants are liable in law to refund a sum of Rs.3,12,000/- to the plaintiff.
25. At the time of arguments, the learned counsel for the appellants submitted on instructions, on 17.12.2019 that his clients are ready to pay interest at the rate of 10% per annum on the sum of Rs.3,12,000/- and filed a memo to the above effect. This memo was taken on record.
26. In view of the above, we feel that ends of justice would be met if the defendants are directed to refund a sum of Rs.3,12,000/- along with interest at the rate of 10% per annum from the date of suit till the date of realization.
30
27. This Regular First Appeal is therefore allowed in part. The impugned Judgment and Decree passed by the Trial Court is set aside and the suit filed by the plaintiff for specific performance is rejected and the relief sought by her for refund of the earnest money of Rs.3,12,000/- is allowed and the defendant Nos.1 to 6 are jointly and severally liable to refund a sum of Rs.3,12,000/- along with interest at 10% per annum from the date of the suit till the date of realization. The defendant Nos.1 to 6 shall pay the aforesaid amount within one month from the date of this Judgment.
Office to draw decree accordingly.
Sd/-
JUDGE Sd/-
JUDGE sma