Karnataka High Court
N.V.Venkataraju vs S.Nagaraju on 20 February, 2025
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2025:KHC:7899-DB
RFA No. 556 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.556 OF 2017 (MON)
BETWEEN:
N. V. VENKATARAJU
S/O. LATE VENKATEGOWDA
MAJOR
R/O. HOUSE NO.3070, R. P. ROAD
NANJANGUD TOWN
MYSURU DISTRICT - 571 301.
...APPELLANT
(BY SRI S. KRISHNA, ADVOCATE, FOR SMT. SUMANA NAGANAND)
AND:
1. S. NAGARAJU
S/O. LATE S. V. SHIVARUDRAPPA
MAJOR
RESIDING AT 4TH CROSS
BRAMHRAMBHA EXTENSION
Digitally signed by CHAMRAJANAGAR TOWN - 571 313.
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH 2.
COURT OF N. VENKATESH
KARNATAKA S/O. LATE N. NAGARAJAN
MAJOR
RESIDING AT DWARKA NILAYA
BEHIND CONVENT HOSPITAL
CHAMARAJANAGAR TOWN - 571 313
SINCE DEAD, REPRESENTED BY HIS LEGAL
REPRESENTATIVES (RESPONDENT NOS.4 AND 5).
3. N. MANJUNATH
S/O. NANJUNDASHETTY
MAJOR
RESIDING AT RAILWAY EXTENSION
CHAMRAJANAGAR TOWN - 571 313.
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NC: 2025:KHC:7899-DB
RFA No. 556 of 2017
4. KUM. MANASA
D/O. N. VENKATESH
AGED ABOUT 26 YEARS.
5. KUM. AKSHA
D/O. N. VENKATESH
AGED ABOUT 23 YEARS.
RESPONDENT NOS.4 AND 5 ARE
RESIDING AT DWARKA NILAYA
BEHIND THE CONVENT HOSPITAL
DOUBLE ROAD
CHAMRAJANAGAR TOWN.
6. A. C. PRAVEEN
S/O. LATE A. M. CHINNASWAMY
AGED ABOUT 47 YEARS
RESIDING AT ALUR VILLAGE
CHAMRAJANAGAR TALUK AND DISTRICT - 571 313.
7. B. M. PARVATHAPPA @ BHOJAPPA
S/O. LATE S. MALLANNA
AGED ABOUT 58 YEARS
RESIDING AT BANDAHALLI VILLAGE
KOLLEGAL TALUK
CHAMRAJNAGAR DISTRICT - 571 313.
8. SMT. SHARADA NAGARAJAN
W/O. LATE NAGARAJAN
AGED 76 YEARS
RESIDING AT DWARKA NILAYA
BEHIND THE CONVENT HOSPITAL
CHAMRAJANAGAR TOWN - 571 313.
9. SMT. N. GEETHA PRABHAKAR
W/O. B. K. PRABHAKAR
AGED ABOUT 58 YEARS
RESIDING AT NO.237, 1ST CROSS, 8TH MAIN
NEW B. D. A. LAYOUT, JAYANAGAR
1ST EAST BLOCK
BENGALURU - 560 011.
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NC: 2025:KHC:7899-DB
RFA No. 556 of 2017
10. SMT. N. KALPANA JAGADEESH
W/O. C. P. JAGADEESH
AGED ABOUT 56 YEARS
RESIDING AT B. R. HILLS ROAD
NEAR B. S. N. L. OFFICE
CHAMRAJANAGAR TOWN - 571 313.
11. D. VARUN
S/O. LATE POORNIMA
AGED 29 YEARS
RESIDING AT DWARAKA NILAYA
BEHIND THE CONVENT HOSPITAL
CHAMRAJANAGAR TOWN - 571 313.
12. D. BHARAN
S/O. LATE POORNIMA
AGED 26 YEARS
RESIDING AT DWARKA NILAYA
BEHIND THE CONVENT HOSPITAL
CHAMRAJANAGAR TOWN - 571 313.
...RESPONDENTS
(BY SRI NAGENDRA NAIK R., ADVOCATE, FOR R-1,
VIDE COURT ORDER DATED 18-6-2024, R-4 AND R-5 ARE
TREATED AS LEGAL REPRESENTATIVES OF DECEASED R-2,
R-3, R-4, R-6, R-7, R-9 AND R-10 ARE SERVED AND
UNREPRESENTED, &
VIDE COURT ORDER DATED 18-6-2024, NOTICE TO R-5
AND VIDE COURT ORDER DATED 10-6-2024, NOTICE TO
R-8, R-11 AND R-12 ARE DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 27-4-2013
PASSED IN O.S. NO.123 OF 2007 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND C.J.M., CHAMARAJANAGAR, DECREEING THE SUIT FOR
SPECIFIC PERFORMANCE.
THIS REGULAR FIRST APPEAL IS COMING ON FOR FURTHER
ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
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NC: 2025:KHC:7899-DB
RFA No. 556 of 2017
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by defendant No.5 challenging the judgment and decree dated 27-4-2013 passed by the learned Senior Civil Judge and C.J.M., Chamarajanagara, ('trial Court', for brevity) in Original Suit No.123 of 2007.
2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is defendant No.5 and the respondents are plaintiff, defendant Nos.1 to 4 and 6 to 12.
3. Brief facts leading rise to filing of this appeal are as under:
Defendant No.1 was the General Power of Attorney holder of Smt. Sharada Nagarajan (Defendant No.8) and her children, who were the absolute owners of the suit schedule property. Defendant No.1 executed the Agreement of Sale dated 22-6-2001 for sale of the suit schedule property to the plaintiff for a sale consideration of Rs.24,30,123/-. On the same day, the plaintiff paid a sum of Rs.9,30,123/- towards advance sale consideration and agreed to receive remaining -5- NC: 2025:KHC:7899-DB RFA No. 556 of 2017 balance sale consideration of Rs.15,00,000/- at the time of execution of registered Sale Deed. In this regard, the plaintiff requested and made demand to defendant No.1 to execute Sale Deed by receiving balance consideration of Rs.15,00,000/-, but defendant No.1 kept postponing the execution of Sale Deed. In fact, the plaintiff has always been ready and willing to perform his part of the contract, but defendant No.1 was not ready to perform his part of contract. Thus, on 26-10-2007, the plaintiff issued legal notice and called upon defendant No.1 to execute Sale Deed, but defendant No.1 neither replied the legal notice, nor executed the registered Sale Deed in favour of the plaintiff. Later, the plaintiff learnt that, defendant No.1 was trying to alienate the suit schedule property to the prospective purchasers by suppressing the Agreement of Sale executed in favour of him. Hence, the plaintiff filed the suit for specific performance of contract.
4. After institution of the suit, defendant Nos.1, 5, 6 and 7 appeared, defendant Nos.2 and 8 to 12 were placed ex parte. Defendant No.1 filed written statement denying the claim of the plaintiff as false. He disputed the Agreement of -6- NC: 2025:KHC:7899-DB RFA No. 556 of 2017 Sale alleged to have been executed in favour of the plaintiff. According to defendant No.1, the Agreement of Sale is created document and the plaintiff has forged all the signatures alleged to have been affixed in the said document. Defendant No.1 has stated that, himself, his mother (Sharada Nagarajan-defendant No.8) and his sisters have jointly sold the suit schedule property in favour of other two persons through separate Sale Deeds. Hence, the suit of the plaintiff is not maintainable and prayed for dismissal of the suit.
5. Defendant No.5/appellant filed separate written statement contending that land bearing Survey No.658/1 measuring 2 acre and 8 guntas was acquired by defendant No.1 under registered Partition Deed dated 6-10-2007. Later, defendant No.1 sold an extent of 1 acre and 30 guntas, out of 2 acre and 8 guntas, in his favour under the registered Sale Deed dated 3-12-2007. Now, the plaintiff has been falsely claiming that he entered into Agreement of Sale on 22-6-2001 with defendant No.1, after lapse of six years, which is barred by law of limitation. Hence, he also prayed for dismissal of the suit.
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6. On the basis of pleadings of the parties, the trial Court framed the following issues:
1) Does the plaintiff prove that, the Defendant has executed an Agreement of Sale in favour of him in respect of suit property by receiving earnest money of Rs.9,30,123/- on 22-06-2001 ?
2) Does the plaintiff prove that he is ready and willing to perform his part of contract?
3) Does the plaintiff prove that he has got cause of action to file present suit, against the defendant?
4) Whether the suit of plaintiff barred by limitation?
5) Does the plaintiff prove that, he is entitled for the relief of specific performance of contract against the defendant?
6) What Order?
7. The plaintiff, in support of his case, examined himself on oath as PW1, got examined three witnesses as PWs.2 to 4 and relied upon nine documents as per Exs.P1 to P9. On the other hand, defendant No.7 examined himself on oath as DW1, defendant No.5 was examined as DW2 and relied upon nineteen documents as per Exs.D1 to D19.
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8. The trial Court, after considering the oral and documentary evidence, answered issue Nos.1 and 2 in the affirmative; issue No.4 in the negative, issue Nos.3 and 5 partly in the affirmative and consequently, decreed the suit of the plaintiff with cost and ordered that the plaintiff is entitled for alternative relief, i.e. refund of earnest money of Rs.9,30,123/- with interest at the rate of 2% above the interest charged by any of the Nationalised Bank preferably SBI or SBM on their Commercial Loans from the date of suit till realisation. Further, ordered that charge is created on the property sold to defendant No.5 till realisation of the decree. Being aggrieved by the said judgment and decree, defendant No.5 has filed this appeal.
9. As per the case of the plaintiff, defendant No.1 entered into Agreement of Sale with him, for sale of seven sites (site Nos.6 to 12) formed in Survey No.658/1, totally measuring 87,572 square feet. Defendant No.1 was the owner of the suit schedule property along with defendant Nos.3, 4 and 8 to 12. Defendant Nos.2 and 5 are the subsequent purchasers of the suit schedule property. Defendant Nos.6 and -9- NC: 2025:KHC:7899-DB RFA No. 556 of 2017 7 are said to have purchased site Nos.1 to 5 and site Nos.1 to 5 are not the subject matter of the suit.
10. To prove the claim, the plaintiff was examined on oath as PW1 and reiterated the plaint averments in his chief- examination and relied on Exs.P1 to P9. Ex.P1 is the Agreement of Sale dated 22-6-2001 executed by defendant No.1 in favour of the plaintiff, wherein he agreed to sell the suit schedule property in favour of the plaintiff for total sale consideration of Rs.24,30,123/- and received a sum of Rs.9,30,123/- as advance sale consideration. To prove the contents of Ex.P1, the plaintiff got examined the attesting witnesses, i.e. PWs.2 to 4, who have stated that they have witnessed defendant No.1 entering into Agreement of Sale with the plaintiff vide Ex.P1. Accordingly, PWs.2 and 3 affixed their signatures as attesting witnesses to Ex.P1, and PW4 is the scribe of Ex.P1, who has stated that he drafted the contents of Ex.P1 as per the instructions of the plaintiff and defendant No.1. They have been thoroughly cross-examined, however, nothing worthwhile has been elicited from their evidence to disbelieve the contention of the plaintiff. The plaintiff also produced Exs.P7 and P8-original Sale Deeds, wherein,
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 defendant No.1 sold site Nos.6 to 12 in favour of defendant Nos.2 and 5, by suppressing the Agreement of Sale entered into between defendant No.1 and the plaintiff.
11. In this case, defendant No.1 has not contested the suit and not entered the witness box. However, defendant Nos.7 and 5 were examined on oath as DWs.1 and 2 respectively. In the evidence, DW2/appellant has admitted that, he has purchased the suit schedule property for valuable consideration without noticing the Agreement of Sale-Ex.P1 entered into between the plaintiff and defendant No.1 and later, denied the existence of Ex.P1. But, there are no specific pleading as to denial of contract as required under Order VI, Rule 4 of the Code of Civil Procedure, 1908, and under Section 17 of the Indian Contract Act, 1872.
12. The defendants challenging the evidence of the plaintiff (PW1), contended that defendant No.1, vendor/seller, had a valid title, i.e., registered Partition Deed entered amongst defendant Nos.1, 3, 4 and 8 to 12, vide Ex.D10. Thereby, defendant No.1 had good title to sell the suit schedule property in favour of defendant Nos.2 and 5. On the
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 other hand, the plaintiff relying on Ex.P1-Agreement of Sale contended that defendant No.1 executed Ex.P1 by virtue of the registered GPA-Ex.P9. In Ex.P9, there is a clear recital as to existence of Ex.P1 executed by defendant No.1 in favour of the plaintiff, but defendant No.1 has not challenged the contents of Ex.P1 and Ex.P9. Therefore, defendant No.5, who is the subsequent purchaser, cannot challenge the validity and contents of Ex.P1 and Ex.P9.
13. So far as limitation aspect is concerned, Ex.P1- Agreement of Sale was executed on 22-6-2001 and the suit was filed on 30-11-2007. From perusal of Ex.P1, there is "thaja column" (at the foot note), wherein, defendant No.1 undertaken to furnish the documents relating to the suit schedule property, more particularly, change of khata in his name from the Municipality. Thus, defendant No.1 was under
an obligation to execute the registered Sale Deed soon after securing mutation of khata in respect of the suit schedule property. Though three months duration was agreed to complete the contract, but defendant No.1 could not complete the contract, as such, time was extended for uncertain period, as can be seen in "thaja column" of Ex.P1. Thus, it clearly
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 establishes that defendant No.1 failed to provide necessary documents relating to the suit schedule property in favour of the plaintiff, so as to conclude his part of the contract. On the contrary, defendant No.1 entered the registered Partition Deed with his family members and sold site Nos.1 to 5 in favour of defendant Nos.6 and 7 and sold site Nos.6 to 12 (suit schedule property) in favour of defendant Nos.2 and 5 by suppressing the execution of Agreement of Sale in favour of the plaintiff. Now, defendant No.5 cannot contend that Ex.P1 has been created one and recitals made in Ex.P1, more particularly, "thaja column" has been forged and concocted one. The "thaja column" bears signature of defendant No.1. This aspect is also not challenged by defendant No.1. In the absence of such evidence, it can infer that defendant No.1 executed Ex.P1 in favour of the plaintiff agreeing to sell the suit schedule property (site Nos.6 to 12) and received advance sale consideration of Rs.9,30,123/-.
14. So far as readiness and willingness is concerned, PW1 admitted in his evidence that earnest money of Rs.9,30,123/- was arranged by raising loan from his friends. Therefore, even if the plaintiff paying the earnest money by
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 raising the loan does not in anyway disentitled the plaintiff to seek the relief of specific performance of the contract. Hence, the trial Court considering the absence of bona fide on the part of defendant No.5, and by exercising the power under Section 20 of the Specific Relief Act, 1963, ordered for refund of earnest money, instead of granting specific performance. However, the plaintiff has not filed any appeal or cross- objection (for the present appeal) being aggrieved by the judgment and decree of the trial Court regarding order of refund of earnest money.
15. On perusal of the oral and documentary evidence, it appears that, PWs.1 to 4 have categorically stated on oath that defendant No.1 being absolute owner of the suit schedule property entered into contract with the plaintiff agreeing to sell the suit schedule property for total consideration of Rs.24,30,123/- and received advance sale consideration of Rs.9,30,123/- under Ex.P1 dated 22-6-2001. In this case, execution of Ex.P1-Agreement of Sale and Ex.P9-GPA are not disputed by defendant No.1. No contrary evidence is placed on record by the defendants to discredit the contention of the plaintiff. Hence, the plaintiff has proved the Agreement of Sale
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 executed by defendant No.1 in his favour for purchase of the suit schedule property for total sale consideration amount of Rs.24,30,123/- and received earnest money of Rs.9,30,123/- as on the date of execution of Agreement of Sale from the plaintiff. The plaintiff also proved that defendant No.1 has breached the terms of the contract and he also proved that, he has always been ready and willing party to perform his part of contract, but defendant No.1 caused delay in production of change of khata in his name from the Municipality.
16. In the instant case, the trial Court, though declined to grant specific relief as sought by the plaintiff, could have exercised discretion Under Section 20 of the Specific Relief Act, 1963 ('the Act', for brevity). Such discretion, however, was not to be exercised arbitrarily, but ought to have been based on sound and reasonable judicial principles. Section 20 of the Act also specified the circumstances in which the Court may properly exercise the discretion not to decree specific performance and it also specified when, in an appropriate case, a decree could be given by proper exercise of discretion. If, therefore, on a consideration of all the circumstances of the
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 case, the trial Court thought that it would be inequitable to grant the relief prayed for, it should not have done so.
17. Clause (c) of Section 16 of the Act states that unless the plaintiff establishes his readiness and willingness to perform his part of the contract, he would not be entitled to a decree of specific performance. It is settled principle of law that no evidence can be permitted to be let in the absence of averments in the plaint/pleadings vide Bachhaj Nahar v. Nilima Mandal and another reported in (2008) 17 SCC
491. In the said case, the Hon'ble Supreme Court laid down the law as follows:
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the Court.
(ii) A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint."
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18. Further, readiness and willingness cannot be considered in as trait jacket formula; it has to be inferred on a consideration of the entire facts and circumstances of each case and the intention and conduct of the parties concerned. Even if a party to the contract is ready and has the requisite funds, he may not be willing to perform his part of the contract and vice versa.
19. Thus, both readiness as well as willingness have to be established by the plaintiff on whom the burden is cast in a suit for specific performance of an agreement. Therefore, the question would arise as to whether the plaintiff discharged such burden in the instant case.
20. On perusal of the oral and documentary evidence on record, it appears that defendant No.1 has not disputed execution of Agreement of Sale in favour of the plaintiff and defendant No.1 has agreed to sell the suit schedule property in favour of the plaintiff for a sum of Rs.24,30,123/- and on the same day, plaintiff paid a sum of Rs.9,30,123/- as earnest money and defendant No.1 has acknowledged the same. The plaintiff has not proved that,
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 he has always been ready and willing party to perform his part of contract, as per the terms of Agreement of sale- Ex.P1. The plaintiff has not proved that, he has sufficient balance sale consideration in order to purchase the suit schedule property and get executed the registered Sale Deed in his favour in respect of the suit schedule property.
21. Looking to any angle, the plaintiff proved execution of Agreement of Sale, and payment of advance sale consideration to defendant No.1. Further, the plaintiff not proved ready and willingness to perform his part of contract with the balance sale consideration. In fact, defendant No.1 sold the suit schedule property (Site Nos.6 to 12) in favour of defendant Nos.2 and 5 under the registered Sale Deed, after lapse of six years of execution of Agreement of Sale. Hence, we hold that, the trial Court considering the oral and documentary evidence placed on record, was justified in decreeing the suit of the plaintiff in-part, by refusing specific performance and ordered for refunding of earnest money with interest to the plaintiff, which calls for no interference. The trial Court directed the
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NC: 2025:KHC:7899-DB RFA No. 556 of 2017 appellant/defendant No.5 alone to pay the earnest money with interest, however, the order with regard to directing the appellant/defendant No.5 to pay the earnest money with interest is required to be interfered with on the ground that, in fact, defendant No.1 entered into Agreement of Sale with the plaintiff. Later, defendant Nos.2 and 5 have purchased the suit schedule property. Thus, defendant Nos.2 and 5 are the absolute owners of the suit schedule property. In this case, the plaintiff has not filed any appeal/cross-objection to the present appeal contending that a specific performance decree has to be granted in his favour. Under such circumstances, it is deemed and appropriate to direct refund of earnest money against defendant Nos.1, 2 and 5. Hence, defendant Nos.1, 2 and 5 are liable to pay earnest money with interest to the plaintiff.
22. With these observations, we proceed to pass the following:
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RFA No. 556 of 2017
ORDER
i. Appeal is partly allowed.
ii. The judgment and decree dated 27-4-2013 passed by the learned Senior Civil Judge and C.J.M., Chamarajanagara, in Original Suit No.123 of 2007, is hereby confirmed. However, defendant Nos.1, 2 and 5 are jointly and severally liable to pay the earnest money of Rs.9,30,123/- with interest to the plaintiff as ordered by the trial Court within three months from today.
iii. No order as to costs.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE KVK List No.: 1 Sl No.: 6