Karnataka High Court
Sri K Basavaiah vs Smt. Susheelamma on 2 August, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02ND DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A. NO.1251/2013
C/W
R.F.A.NO.848/2010
R.F.A. NO.1251/2013
BETWEEN:
SRI. K.BASAVAIAH
S/O KOOSAPPA
AGED ABOUT 77 YEARS
REPTD BY HIS GPA HOLDER
RAVI B
S/O K. BASAVAIAH
BOTH ARE RESIDENTS OF THE
SAME ADDRESS
AGED ABOUT 28 YEARS
R/AT NO.594, SRIRAMPURA
NANJANAGUD ROAD
T.NARASIPURA, MYSORE DISTRICT. ... APPELLANT
(BY SRI RAVI B -PARTY IN PERSON)
AND:
SMT. SUSHEELAMMA
W/O LATE N.BHASKAR
AGED ABOUT 73 YEARS
RESIDING AT NO.107,
19TH CROSS, 21ST MAIN
MC LAYOUT, VIJAYANAGAR
BANGALORE-560 040. ... RESPONDENT
(BY SMT E.R. PANKAJA MANI, ADVOCATE)
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THIS APPEAL IS FILED UNDER ORDER 41, RULE-2,
R/W SECTION 96 OF CPC, PRAYING AGAINST THE
JUDGMENT AND DECREE DATED 20.10.2012 PASSED IN
O.S.NO.6539/2006 ON THE FILE OF XXV-ADDL. CITY CIVIL
JUDGE, BENGALURU, DECREEING THE SUIT FOR
EJECTMENT.
R.F.A. NO.848/2010
BETWEEN:
1. SRI. K.BASAVAIAH
S/O KOOSAPPA
AGED ABOUT 73 YEARS
2. NAGAMMA
W/O K. BASAVAIAH
AGED ABOUT 65 YEARS
BOTH THE APPELLANTS
ARE RESIDING AT NO.76,
GROUND FLOOR,
19TH CROSS, KHBMS BUILDING
VIJAYANAGAR
BANGALORE - 560 040. ... APPELLANTS
(BY SRI RAVI B -PARTY IN PERSON)
AND:
SMT. SUSHEELAMMA
W/O LATE N.BHASKAR
AGED ABOUT 73 YEARS
RESIDING AT NO.107,
19TH CROSS, 21ST MAIN
MC LAYOUT, VIJAYANAGAR
BANGALORE - 560 040. ... RESPONDENT
(BY SMT E.R. PANKAJA MANI, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
PRAYING AGAINST THE JUDGMENT AND DECREE DATED
3
13.01.2010 PASSED IN O.S.NO.5439/2006 ON THE FILE OF
17TH ADDL. CIVIL JUDGE, BANGALORE (CCH-16),
DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF
AGREEMENT.
THESE APPEALS ARE COMING ON FOR FINAL
DISPOSAL THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
RFA No.848/2010 is filed by plaintiff (defendant- Appellant in RFA No.1251/2013) being aggrieved by judgment and decree passed by 17th Addl.City Civil Judge, Bangalore in O.S.No.5439/2006 dated 13.01.2010 dismissing the suit filed by plaintiff for specific performance of agreement of sale dated 05.05.2003.
2. RFA No.1251/2013 is filed by defendant (plaintiff- appellant in RFA No.848/2010) being aggrieved by judgment and decree passed by 25th Addl.City Civil Judge, Bangalore in O.S.No.6539/2006 dated 20.10.2012 decreeing the suit filed by plaintiff for ejectment of defendant from the suit schedule property.
3. This Court, by order dated 06.11.2013 passed in RFA No.1251/2013 had directed the Registry to post RFA 4 No.848/2010 and as such, these two appeals have been listed together from time to time. Both the appeals having been admitted, they are taken up together for consideration by consent and disposed of by this common judgment giving reasons after narrating the facts independently.
4. Parties are hereinafter referred to as per their rank in the trial Court in O.S.No.5439/2006 (RFA No.848/2010).
5. Facts in brief which has led to filing of these two appeals are as under:
RE: RFA No.848/2010 (O.S.No.5439/2006)
6. Plaintiffs filed a suit for specific performance of agreement of sale dated 05.05.2003 against defendant contending interalia that sale deed dated 19.02.2003 executed by second plaintiff in favour of defendant was a conditional sale deed and it was on account of transaction between defendant and one Sri Mahadevaiah and said Sri. Mahadevaiah had to repay a sum of Rs.3,00,000/- to the defendant since he had agreed to sell 3 sites in favour of three daughters of the defendant and as he did not keep up 5 his promise or repaid the amount received from the defendant, plaintiffs had to execute the sale deed of portion of suit schedule property namely 1/3rd share as a security till said amount was paid by Sri. Mahadevaiah, since it was plaintiffs who has introduced Sri. Mahadevaiah to the defendant and this was the root cause for second plaintiff to execute the sale deed in favour of defendant and subsequently on Panchayat being held, defendant had agreed to re-sell the suit schedule property in favour of plaintiffs if a total consideration of Rs.5,68,000/- was paid and pursuant to same, agreement of sale came to be executed by defendant in favour of plaintiffs and on the date of agreement a sum of Rs.1,50,000/- was paid. Despite offer made by plaintiffs and expressing their readiness and willingness to get the sale deed registered in their favour, defendant had did not come forward to execute the sale deed and refused to comply with the legitimate demand made by the plaintiffs. Hence, seeking specific performance of agreement to sell dated 05.05.2003, plaintiffs filed the suit in question. On service of suit summons, defendant appeared and filed her written statement admitting thereunder the 6 execution of agreement of sale dated 05.05.2003 but interalia contended that time was the essence of contract as agreed to between parties and on account of plaintiffs failing to comply with their obligation, they were not entitled for the relief sought for. Hence, defendant prayed for dismissal of the suit.
RE: RFA No.1251/2013 (O.S.No.6539/2006)
7. Defendant filed a suit for ejectment against the plaintiffs in respect of suit schedule property contending that second plaintiff had executed sale deed dated 19.02.2003 in favour of defendant conveying the suit schedule property in favour of defendant and they had requested the defendant to permit them to be in possession of suit property for two months and as such defendant had graciously granted time of two months and on account of plaintiffs not vacating the suit schedule property even after lapse of said period, defendant got issued a quit notice and thereafter suit in question i.e., O.S.No.6539/2006 was filed seeking ejectment of plaintiffs. On service of suit summons, plaintiffs appeared and filed their written statement contending that said suit is 7 filed as a counter blast to the suit O.S.No.5439/2006 filed by them and they denied all other averments made in the plaint. They sought for dismissal of the suit.
8. These two suits were independently tried by two Courts and neither of the parties made any attempt to get these two suits clubbed and after adjudication, suit filed by the plaintiffs for specific performance came to be dismissed and suit filed by the defendant against plaintiffs for ejectment came to be decreed. As such, aggrieved by these judgment and decrees, plaintiffs in O.S.No.5439/2006 have filed these two appeals.
FINDINGS RECORDED BY TRIAL COURT IN O.S.NO.5439/2006
9. Trial Court has recorded a finding that there is no dispute with regard to execution of sale deed dated 19.02.2003 by second plaintiff in favour of defendant and agreement of sale dated 05.05.2003 by defendant in favour of plaintiffs. It has been held by the trial Court that consideration amount agreed to be paid by plaintiffs to defendant under the sale agreement was Rs.5,68,000/- and 8 Rs.1,50,000/- was paid as advance on the date of said agreement and balance amount of Rs.4,18,000/- was to be paid by the plaintiffs to defendant within a period of sixty days. Trial Court has also recorded a finding that there is no dispute with regard to time being the essence of contract and plaintiffs also having agreed to handover vacant possession of suit schedule property to the defendant if said amount is not paid by them.
10. Trial Court has held that second plaintiff has not entered the witness box and evidence of her husband namely, first plaintiff cannot be accepted since he was not present at the time of execution of sale agreement dated 05.05.2003. It was also noticed by trial Court that defendant had not entered the witness box and her daughter was examined as D.W.1 and she was not aware of the sale agreement dated 05.05.2003. Trial Court has accepted the evidence of D.W.1 on the ground that tenor of cross examination would indicate as though D.W.1 was present at the time of suit transaction and plaintiffs have not suggested to the said witness that her evidence is hearsay evidence. 9
11. Trial Court has further held that plaintiffs ought to have paid balance consideration of Rs.4,18,000/- to the defendant within sixty days i.e., on or before June, 2003 and same was not paid and to establish that plaintiffs had made arrangements to borrow money from Sree Subrahmanyeswara Co-operative Bank, they had produced letter issued by the Bank as per Ex.P-9 which would only indicate that prior to June, 2003 plaintiffs did not have money to pay the balance sale consideration to defendant and plaintiffs had not established about amount being available with them to perform their part of the contract and plaintiffs had taken steps to apply for a bank loan only after sixty days period stipulated in the agreement had lapsed. Trial Court also held that plaintiffs have not got issued legal notice during November, 2003 after sanction of loan and they had kept quite from June, 2003 till April, 2006 which would only indicate that plaintiffs did not have money to perform their part of the contract. Plaintiffs have wantonly kept quite for a period of two years eight months and mere attempts made to apply for a loan would not enure to the benefit of plaintiffs or they being ready and willing to perform 10 their part of the contract. Hence, trial Court concluded that plaintiffs had not performed their part of the contract.
12. Trial Court also found that sale deed dated 19.02.2003 executed by second plaintiff in favour of defendant does not reflect about any reconveyance deed or agreement of sale dated 05.05.2003 having been executed by defendant in favour of plaintiffs and said document also does not establish any nexus to the transaction between defendant and Sri Mahadevaiah or same being referable to the sale agreement dated 05.05.2003. On these grounds, suit came to be dismissed. Hence, plaintiffs have preferred RFA No.848/2010 questioning the said judgment and decree dated 13.01.2010 dismissing the suit for specific performance.
IN O.S.No.6539/2006:
13. It has been held by the trial Court that independent witnesses have not been examined by plaintiffs to establish under what circumstances sale deed dated 19.02.2003 had been executed by second plaintiff in favour of defendant. The executant of sale deed dated 19.02.2003 - Ex.P.1 was not 11 examined and non examination of witnesses to the sale deed is fatal to the plaintiffs claim. Evidence is at variance when compared with the pleadings. The suit filed by plaintiffs for specific performance against defendant based on agreement of sale dated 05.05.2003 had been dismissed was yet another factor which swayed in the mind of trial Court to decree the suit for ejectment. The evidence of second plaintiff (Smt.Nagamma) was closed on account of the fact that she was not co-operating with recording of evidence and she was not answering the questions in her cross examination whilst in the witness box but was behaving adamantly and arrogantly which had worked to the advantage of the defendant. Notice demanding possession issued by defendant is duly served on the plaintiffs and there was no material to accept the defence set up by the plaintiffs and as such, trial Court has decreed the suit which has given cause for the plaintiffs (i.e., defendants in the said suit) to file the present appeal RFA No.1251/2013. CONTENTIONS:
14. I have heard the arguments of Sri Ravi B, who has appeared in person as Power of Attorney holder of first 12 appellant - Sri K Basavaiah (both cases) and who is also first appellant's son. With the leave of the Court, he has also argued on behalf of second appellant - Smt.Nagamma - his mother, who is the wife of first appellant and who is present along with her son. Since the counsel who was appearing earlier on behalf of appellant has given No-objection and in view of the memo filed on 09.12.2013 Sri B Ravi was permitted by this Court to address arguments on behalf of appellants. Smt.E.R.Pankajamani, learned Advocate has appeared on behalf of respondent in both the appeals and has addressed the arguments.
15. It is the contention of Mr.Ravi that trial Court committed a serious error in concluding that evidence tendered by defendant is to be accepted though D.W.l was not personally aware of the suit transaction. He would also contend that factual aspects were not within the knowledge of D.W.1 and merely because defendant had executed a Power of Attorney in favour of her daughter D.W.1 would not alter the factual situation and as such, acceptance of evidence tendered by D.W.1 is erroneous and is liable to be ignored.
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16. He would further elaborate his submission by contending that plaintiffs had produced the communication received from Sree Subrahmanyeswara Co-op. Bank - Ex.P-9 to establish sanction of loan in favour of plaintiffs and cancellation thereof in the month of November, 2003 which would indicate that plaintiffs had taken steps to pay balance sale consideration and also indicate readiness and willingness of the plaintiffs to perform their part of the contract. He would contend that when defendant did not dispute the execution of sale agreement dated 05.05.2003 and defendant having not taken any step after the lapse of sixty days and issuing the quit notice in October, 2004 without disclosing transaction relating to agreement of sale dated 05.05.2003 are vital aspects not considered by trial Court in its proper perspective resulting in the suit being erroneously dismissed and contends that said notice dated 30.10.2004 was duly replied by the plaintiffs on 17.12.2004 and subsequently on 13.04.2006.
17. He would further elaborate his submission by contending that time was not the essence of contract in question relating to immovable property and if it were to be 14 so, defendant would have taken steps either by issuing a notice or had called upon the plaintiffs to receive back the advance amount of Rs.1,50,000/- paid on 05.05.2003. He contends that very fact of defendant having not raised her little finger till she got issued legal notice on 30.10.2004 would be a pointer to the fact that time was not the essence of contract. He would also draw the attention of the Court to the evidence of D.W.1 namely, the witness who was examined on behalf of defendant who is none other than her daughter to buttress his argument that sale deed dated 19.02.2003 executed by second plaintiff in favour of defendant was not an outcome of alleged transaction between defendant and one Sri Mahadevaiah to whom defendant allegedly had paid a sum of Rs.3,00,000/- on the alleged assurance of plaintiffs and on account of said Sri Mahadevaiah having not delivered the sites as agreed to by him in favour of the daughter of defendant, which had been lost sight of by trial Court or in other words, said plea of the plaintiffs had not been examined in right perspective inasmuch as, said dispute between the plaintiffs and defendant resulted in agreement of sale dated 05.05.2003 15 taking birth and this fact having been accepted by trial Court partially, suit of plaintiffs for specific performance ought to have been decreed.
18. He would draw the attention of Court to the admission of D.W.1 with regard to Ex.D-3 and Ex.D-4 which are the Power of Attorney executed by the daughters of defendant in favour of plaintiffs which related to sale transaction between defendant and Sri Mahadevaiah under which transaction, defendant had paid a sum of Rs.3,00,000/- to said Sri Mahadevaiah which admission according to him proved the case of plaintiffs. He would submit that this material evidence available on record had been overlooked by the trial Court and as such it has resulted in an erroneous judgment and decree being passed by trial Court. He would contend that plaintiffs had satisfied the necessary ingredients required for decreeing the suit and trial Court ought to have exercised its discretion under Section 16(1)(c) of the Specific Relief Act to decree the suit. He would submit that plaintiffs have always been ready and willing to perform their part of the contract and it is the defendant who by her inaction and silence exhibited her unwillingness to perform her part of the 16 contract. As such, he prays for allowing the appeal R.F.A.No.848/2010 and seeks for decreeing the suit O.S.No.5439/2006.
19. In support of his contention raised in RFA No.1251/2013 which relates to judgment and decree passed in O.S.No.6539/2006 he contends that in the event of this Court accepting the plea of plaintiffs put forward in RFA No.848/2010, then, necessarily appeal - RFA No.1251/2013 requires to be allowed since trial Court had decreed the suit for ejectment mainly on the ground that suit for specific performance had been dismissed.
20. Elaborating his submission, he contends that non- consideration of material evidence available on record in proper perspective and erroneous appreciation of evidence available on record has also resulted in judgment and decree in question being passed as such, he prays for allowing the appeal - R.F.A.No.1251/2013 and dismissing the suit O.S.No.6539/2006 filed by the defendant for ejectment/possession.
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21. In support of his submissions, he has relied upon following judgments:
(i) 2006 AIR SCW 2606- Mst. Sugani V/s Rameshwar Das & Anr.
(ii) AIR 2009 SC 2157- Azhar Sultana V/s B. Rajamani & Ors.
(iii) AIR 1993 MADRAS 100- R.Velammal V/s R Daivasigamani and others
(iv) AIR 2003 SC 1391- Manjunath Anandappa Urf Shivappa Hansi, V/s Tammanasa and others
(v) ILR 2009 KAR 3533- Dr.S.K. Ghatak and others V/s S. Prabir Roy and another On these grounds, he prays for allowing of both the appeals and for decreeing the suit for specific performance and also prays for dismissing the suit for possession filed by defendant against plaintiffs namely, O.S.No.6539/2006.
22. Per contra, Smt. Pankaja Mani would support the judgment and decree passed by trial Court and contends that till defendant issued the quit notice calling upon the plaintiffs to deliver possession, plaintiffs did not come forward to perform their part of the contract as agreed to 18 under the sale agreement dated 05.05.2003 and the perusal of sale agreement dated 05.05.2003 would clearly indicate that time was the essence of contract and there is no explanation whatsoever forthcoming for inaction on the part of plaintiffs in not performing their part of the contract as agreed to under the sale agreement dated 05.05.2003 and particularly, the period between 25.06.2003 to 30.10.2004 has remained in vacuum. She would also contend that neither in Ex.P-4 namely, reply notice dated 29.11.2004 nor in the notice dated 17.12.2004 plaintiffs have pleaded their readiness and willingness to perform her part of the contract. Only in the year 2006 i.e., by notice dated 13.04.2006 plaintiffs have called upon the defendant to execute the sale deed and their inaction from 25.06.2003 to 13.04.2006 has remained unexplained and as such, trial Court has rightly dismissed the suit and hence, she prays for dismissal of both the appeals.
23. Having heard the learned Advocates appearing for parties and on perusal of judgment and decrees passed by trial Court in both the suits, I am of the considered view that following points would arise for my consideration: 19
POINTS FOR DETERMINATION:
(1) Whether trial Court was correct and justified in arriving at a conclusion that time was the essence of the contract agreed to between parties under the agreement of sale dated 05.05.2003?
(2) Whether plaintiffs proved that they have been always ready and willing to perform their part of the contract by cogent evidence?
(3) Whether judgment and decree
passed by trial Court in
O.S.No.5439/2006 suffers from any
material irregularity on account of
non appreciation of evidence
available on record or erroneous
appreciation of available evidence,
calling for interference at the hands
of this Court?
(4) Whether judgment and decree
passed by trial Court in
O.S.No.6539/2006 suffers from any
patent illegality or material
irregularity on account of non
appreciation of available evidence on
record or erroneous appreciation of
available evidence calling for
20
interference at the hands of this
Court?
(5) Whether judgment and decrees
passed by the Court below in
O.S.No.5439/2006 and 6539/2006
are liable to be affirmed or set
aside?
(6) What order?
BACKGROUND OF CASES
RE: O.S.NO.5439/2006
24. Plaintiffs filed a suit for specific performance against the defendant on 24.06.2006 seeking relief of specific performance of agreement of sale dated 05.05.2003 executed by defendant in favour of plaintiffs 1 and 2 in O.S.No.5439/2006 interalia contending that second plaintiff had executed a registered sale deed dated 19.02.2003 in favour of defendant as security for the amount recoverable by defendant from one Sri Mahadevaiah namely, friend of first plaintiff to whom defendant had paid a sum of Rs.3,00,000/- on the advice of plaintiffs and on account of said Sri Mahadevaiah having not paid the said amount to defendant which was given to him towards purchase of 21 three sites to three daughters of defendant and said Sri Mahadevaiah having not repaid the amount nor delivered the sites as agreed to, had resulted in defendant insisting upon second plaintiff to execute a nominal sale deed in favour of defendant relating to suit schedule property and as such, sale deed dated 19.02.2003 was executed. Plaintiffs further contended that second plaintiff is an illiterate lady and she had affixed her left hand thumb impression on being convinced that property would be registered back to second plaintiff after payment of amount of Rs.3,00,000/- to be paid by Sri. Mahadevaiah to defendant. It was also contended that sons of plaintiffs are suffering from psychic problems and they have been made as co-executants to said sale deed without knowing the contents and as such it is not binding on them. They also contended that defendant had played fraud on the plaintiffs with an intention to grab the suit schedule property and as such, sale deed dated 19.02.2003 executed by second plaintiff in favour of defendant is to be held as an outcome of fraud.
25. Plaintiffs further contended that defendant had promised and agreed that she will re-convey the said 22 property in favour of plaintiffs whenever amount of Rs.3,00,000/- is repaid and as such, plaintiffs after arranging the amount had requested the defendant to re- convey the suit property to the plaintiffs which was declined and neglected by defendant despite approaches made by plaintiffs from time to time. Plaintiffs also claimed that they are in possession of suit schedule property. They further contended that quit notice issued to the plaintiffs has been duly replied and the demand made therein by defendant has been refused to be complied by the plaintiffs. They further pleaded that a Panchayat was held and it was resolved at the said Panchayat that defendant should re-convey the property in favour of plaintiffs by receiving sum of Rs.5,68,000/- and accordingly an agreement came to be entered into between the plaintiffs and defendant. Alleging that defendant had not performed her part of the contract as agreed to under the agreement of sale dated 05.05.2003, the suit in question came to be filed contending that plaintiffs had raised a loan of Rs.5,00,000/- from Shree Subrahmanyeswara Co- operative Bank, Bangalore during June, 2003 and after deducting a sum of Rs.1,50,000/- paid as advance, balance 23 amount of Rs.4,18,000/- was paid to defendant as per agreement dated 05.05.2003. On account of refusal of defendant to perform her part of the contract, suit came to be filed seeking specific performance of agreement of sale dated 05.05.2003 against the defendant.
26. On service of suit summons, defendant appeared and filed written statement denying the averments made in the plaint. It was contended that alleged transaction between Sri S Mahadevaiah and defendant referred to by plaintiffs in the plaint was irrelevant. Defendant further contended that second plaintiff had sold suit schedule property to the defendant on 19.02.2003 under a registered sale deed on account of necessity which was the self acquired property of second plaintiff and she being the absolute owner had conveyed the said property in favour of defendant and as such none else can claim right over the same.
27. Defendant further pleaded that plaintiffs had requested the defendant to extend sympathy to enable the plaintiffs to quit, vacate and hand over vacant possession of suit schedule property and out of sympathy, time was 24 granted and despite granting sufficient time, plaintiffs did not vacate the suit schedule property and hand over vacant possession and as such suit for ejectment/possession came to be filed. Defendant also contended that plaintiffs came forward with a proposal during April, 2003 requesting the defendant to sell the suit schedule property for a sum of Rs.5,68,000/- and to pay the said amount, plaintiffs wanted 60 days time. Defendant also contended that after expiry of 60 days, plaintiffs had agreed to deliver vacant possession of suit schedule property which proposal was time bound or in other words, it was contended that time was the essence of contract. Defendant admitted the execution of agreement dated 05.05.2003 and on account of plaintiffs not showing their readiness to perform their promise made on 25.04.2003 orally and on 05.05.2003 and upto 25.06.2003 defendant was perforced to issue a quit notice to the plaintiffs and also on account of deliberate silence on the part of plaintiffs even after 25.06.2003. Defendant also referred to Panchayat pleaded in the plaint to be true but contended that parties had agreed that time was the essence of contract. Defendant also denied that plaintiffs had contacted her in the month of 25 June, 2003 and it was specifically contended that plaintiffs had never issued any notice to defendant expressing their readiness and willingness between 24.05.2003 to 25.06.2003 and as such, it was contended that suit for specific performance was not maintainable and sought for dismissal of the same.
28. Defendant also denied that sale deed dated 19.02.2003 was a conditional sale deed. All other averments made in the plaint came to be denied and defendant sought for dismissal of the suit.
29. On the basis of pleadings of the parties, trial Court formulated following issues for its adjudication:
"1. Whether the plaintiffs prove that defendant executed the agreement of sale dated 5.5.2003 in favour of the plaintiffs and agreed to sell the suit schedule property for Rs.3,00,000/-?
2. Whether the plaintiffs further prove that plaintiff is in possession and enjoyment of the schedule property?
3. Whether the plaintiffs further prove that defendant refused and neglected the Sale Deed in favour of the plaintiff as per the terms of the agreement?26
4. Whether the plaintiffs are ready and willing to perform their part of contract, but the defendant failed to perform her part of contract?
5. Whether the defendant proves that suit is barred by limitation?
6. Whether the plaintiffs are entitled for the relief of specific performance of contract?
7. What order or Decree?"
30. Trial court on appreciation of evidence, by Judgment and decree dated 13.01.2010 dismissed the suit for specific performance. The reasons or the findings recorded by the trial Court for dismissing the suit has already been noticed herein above and plaintiffs being aggrieved by the said Judgment and decree have filed appeal RFA No.848/2010. RE: O.S.No.6539/2006
31. Thereafter sole defendant (in O.S.No.5439/2006) Smt. N. Susheelamma filed a suit O.S.No.6539/2006 on 20.07.2006 seeking for delivery of vacant possession of suit schedule premises and also sought for compensation/damages @ 2,500/- per day from the date of suit till delivery of vacant possession of suit schedule 27 premises, contending interalia that she had purchased the suit schedule property from the plaintiffs under a registered sale deed dated 19.02.2003 and second plaintiff had requested for few days time to vacate the suit schedule premises and at her request, time of two months was granted. It was also contended that on account of second plaintiff not delivering possession of suit schedule premises a legal notice dated 30.10.2004 demanding delivery of vacant possession was got issued which came to be replied by the plaintiffs on 17.12.2004 by raising untenable grounds. Defendant also admitted that parties had entered into an agreement of sale namely defendant had agreed to sell the suit schedule property to the second plaintiff for a consideration of Rs.5,68,000/-. However, it was contended by defendant that to pay the said amount, plaintiffs had sought for 60 days time and as such defendant extending her sympathy had granted time to the plaintiffs to make payment of Rs.5,68,000/- within 60 days commencing from 24.05.2003. Defendant further contended that under the said agreement 05.05.2003 plaintiffs had recognised the defendant to be the absolute owner of the suit schedule 28 property and on account of plaintiffs not vacating the suit schedule property suit in question has been filed seeking for possession. Defendant has also narrated the exchange of legal notices between the parties.
32. On service of suit summons, plaintiffs appeared and first plaintiff alone filed written statement denying the averments made in the plaint except to the extent expressly admitted thereunder. It was specifically contended by the plaintiffs that defendant knew that possession of the suit schedule premises was not handed over to defendant when plaintiffs executed the sale deed on 19.02.2003 and contended that defendant had an intention to knock away the suit schedule property. It was also contended that sale deed dated 19.02.2003 was not in accordance with law and it was not a valid document. It was contended by the plaintiffs that they had executed sale deed dated 19.02.2003 in favour of defendant as security for the amount which had been advanced by the defendant to Sri.Mahadevaiah for purchase of three sites in the names of her three daughters and on account of said Sri.Mahadevaiah not adhering to his promise, plaintiffs had stood as guarantors to secure the 29 amount of the defendant since plaintiffs had introduced Sri. Mahadevaiah to defendant and as such a nominal sale deed was executed by way of security. Second plaintiff also pleaded that she is an illiterate lady and does not know how to sign and had affixed her thumb impression as indicated by defendant. The manner in which the agreement to sale came into existence has also been narrated by the first plaintiff in the written statement filed by him in the suit for possession filed by defendant. On these amongst other grounds raised in the written statement, sought for dismissal of the suit for possession filed by defendant against the plaintiffs.
33. On the basis of the pleadings of the parties, trial Court framed following issues for its consideration:
1. "Whether the plaintiff proves that the defendants are in permissive possession of the suit schedule property as per the permission accorded by the plaintiff after obtaining the sale deed dated 19.02.2003 from the defendant No.2 as alleged?30
2. Whether the plaintiff proves that the defendants have committed breach of agreement dated 5.5.2003 as alleged?
3. Whether the plaintiff proves that he had issued a Notice dated 30.10.2004 and demanded the defendants for delivery of the vacant possession of the suit schedule property?
4. Whether the defendants prove that the sale deed dated 19.02.2003 was executed by the defendant No.2 as a security for the repayment of the amount as alleged?
5. Whether the plaintiff is entitled for a decree of possession as prayed for?
6. Whether the plaintiff is entitled for damages as prayed for?
7. What order or decree?"
34. Trial Court on appreciation of evidence, by Judgment and decree dated 20.10.2012 decreed the suit for possession and directed the plaintiffs to hand over vacant possession of 31 the suit schedule premises to the defendant on or before 31.01.2013. The reasons or findings recorded by trial Court for decreeing the suit has already been noticed herein above and defendants in said suit being aggrieved by the said judgment and decree have filed the appeal RFA No. 1251/2013.
RE: POINT NO.1, 2 AND 3:
35. In order to answer these three points, it would be necessary to narrate certain undisputed facts and they are as under:
It is not in dispute that plaintiff No.2 was the absolute owner having right title and interest over the property bearing No.76, Vijayanagar, Bangalore 40, together with 1/3rd undivided right, title and interest therein. It is also not in dispute that second plaintiff sold said 1/3rd undivided right, title and interest in the said property to the defendant under a registered sale deed dated 19.02.2003, copy of which came to be marked as Ex.D-5. Consideration indicated in the sale deed is Rs.1,96,000/-.
36. Though plaintiffs contended that said sale deed obtained by the defendant is an outcome of fraud in the suit 32 filed by them i.e. O.S.No.5439/2006 trial Court has rightly not accepted said contention and the reasons assigned by the trial Court is based on cogent material available on record and there is no error or infirmity whatsoever committed by the trial Court in this regard. No interference is called for.
37. Trial Court has also found that subsequent to sale deed dated 19.02.2003 - Ex.D-5 executed by second plaintiff in favour of defendant, an agreement to sell the said property purchased by her under the sale deed dated 19.02.2003 in favour of the plaintiffs came to be executed by her. The plea that came to be put forward by the plaintiffs that sale deed dated 19.02.2003 was executed by second plaintiff as a security or to secure the amount payable by one Sri Mahadevaiah to defendant has been rejected by the trial Court. However, trial Court has accepted that there was an agreement of sale between the parties as per Ex.P-3.
38. In order to examine the contentions raised by Mr. Ravi, party appearing on behalf of the plaintiffs namely, his parents, it would be necessary to not only examine the 33 pleadings in its entirety as also the documentary evidence tendered by the parties. Under the sale deed dated 19.02.2003 plaintiffs have sold the property bearing Municipal No.76/10/4 together with 1/3rd undivided share in the land. However, in the agreement of sale dated 05.05.2003 there is no mention with regard to the said aspect at all. Neither of parties to the lis have spoken to on this aspect. Recital in the sale deed dated 19.02.2003 would clearly indicate what has been purchased by defendant is the ground floor in the suit schedule property with proportionate 1/3rd undivided right, title and interest in the said property.
39. In this background let me examine as to whether evidence tendered by the parties has been appreciated by the trial Court in proper perspective. It is no doubt true that appellate Court would be slow in interfering with the finding recorded by the trial Court until and unless such finding is patently erroneous or there has been non consideration of material evidence or erroneous appreciation of evidence available on record.34
40. Keeping these contours in mind when the pleadings as well as material evidence available on records are examined, it would indicate that specific plea raised by the plaintiffs in O.S.No.6539/2006 was, sale deed dated 19.02.2003 came into existence on account of there being a transaction between defendant and one Sri Mahadevaiah namely, said Sri. Mahadevaiah had agreed to sell three sites in favour of three daughters of defendant and he had not adhered to said understanding despite receiving Rs.3,00,000/- from defendant and said Sri. Mahadevaiah having been introduced by the plaintiffs to the defendant, plaintiffs had forced by circumstances to stand as a security or guarantor for repayment of the amount payable by said Sri. Mahadevaiah to the defendant. Said plea is susceptible to acceptance for reasons more than one. Firstly, defendant Smt Susheelamma, did not enter the witness box to deny these facts and the alleged transaction with her. Infact she was the best witness to speak about alleged transaction that had taken place between herself and said Sri. Mahadevaiah.
Obviously she remained absent from appearing before Court and her conduct would indicate that in the event she had 35 appeared before Court, she would have been cross-examined on this issue and truth would have come out. For reasons best known, trial Court has conveniently overlooked this fact. Smt. Bhuvaneshwari, one of the daughters of defendant came to be examined as D.W.1 on the strength of Special Power of Attorney executed by her mother on 17.07.2006 as per Ex.D-6 and her evidence came to be accepted by the trial court by recording a finding that no fault can be found in this regard. It is no doubt true that a party to the lis can either get himself/herself examined subsequent to the witness being examined and order 18 Rule 3A CPC enables the Court to grant such permission to a party. However, an agent who enters appearance on behalf of the principal will be able to speak in the witness box only such of those facts which are within his/her knowledge and hearsay evidence will not be eschewed by the Court. In fact, trial Court has discussed this aspect in its judgment at paragraph 13. It has also noticed by trial Court that D.W.1 is not a witness to the sale deed dated 19.02.2003 or the agreement of sale dated 05.05.2003. Further, trial Court has noticed about D.W.1 having spoken about sale deed and 36 agreement of sale in her examination-in-chief knowing fully well that she was not present when both these documents were presented and she having not participated in any discussion that took place between parties. Infact, trial Court has held categorically that defendant could have tendered evidence through Court Commissioner. However, trial Court has accepted her evidence as gospel truth on the ground that plaintiffs have cross examined her in extenso relating to the facts of the case touching merits of the case and as such it has to be accepted. This is an erroneous finding, inasmuch as when the witness has entered the witness box and spoken about suit transaction which undisputedly she was not personally aware and merely because plaintiffs have been perforced to cross examine her on this aspect does not mean her evidence is to be accepted. At this juncture itself it can be noticed that defendant who is the plaintiff in O.S.No.6539/2006, had entered the witness box after conclusion of cross examination of D.W.1 in O.S No.5439/2006, namely, she filed her affidavit in lieu of examination in chief on 21.11.2009 in O.S.No.6539/2006 immediately after conclusion of cross examination of her 37 daughter - D.W.1 in O.S.No.5439/2006 on 08.10.2009. This exercise has been undertaken by her obviously to over come admissions given by her daughter as D.W.1 in O.S.No.5439/2006 and to fill up the lacuna. This would clearly indicate that defendant has been attempting to improve her case stage by stage and step by step. In fact P.W.1 (Smt. Susheelamma) in O.S.No.6539/2006 was confronted with the original receipts issued by above said Sri. Mahadevaiah in favour of her three daughters which came to be marked as Exs.P-11, P-12 and P13 in the cross examination on 13.12.2011. In view of the fact that Exs.P-11 to P-13 has been produced by plaintiff herself along with a memo dated 30.10.2010/28.01.2011 it was marked as documents of plaintiff. Her admission in this regard reads as under:
"I do not know Mahadevaiah. I have three daughters namely Bhuvaneshwari, Umadevi and Chandrika. I do not know about defendant No.1 entering into any transactions with Mahadevaiah regarding sale of site.
Now the witness is shown three receipts said to have been produced by plaintiff's counsel. It is suggested that these receipts have 38 been issued by Mahadevaiah in favour of each of the daughters of the witness. Witness answers - my daughters might have produced these receipts. In view of this answer these documents are marked as Ex.P11 to P-13. It is xxxxxxx deposing falsehood."
41. To the question as to whether she knew about said transaction her daughters had with Sri Mahadevaiah, she initially feigned ignorance. But on further cross examination she has spilled the beans admitting said transaction. Her evidence / admission in the cross examination dated 11.03.2010 reads as under:
"Question: Do you know about the power of attorney executed by your children in favour of def. No.1 for recovery of amount from Mahadevaiah:
Answer: I am in no way concerned to that.
It might to be true that defendant -1 on the basis of power of attorney had lodged the complaint against Mahadevaiah in Kengeri Police station and I do not know about it. It is false to suggest that because we could not secure Mahadeviah by bringing pressure on the defendant accusing them that because of them I had to lose the 39 amount I insisted for executing a sale deed. I do not know that because of this, dispute arose between defendants. It is true to suggest that defendant-1 had left the house for two months and during his absence defendant -2 executed the sale deed.
It is true to suggest that two months after when defendant-1 returned back when he came to know about the sale deed he arranged panchayat and panchayat had given a decision that suit property has to be reconveyed to the defendants. It is true to suggest that in this regard sale agreement was executed. As per this agreement we have not executed the sale deed in favour of the defendants. It is true to suggest that because I did not execute the sale deed, defendants have filed a suit for specific performance in this court and later I have filed this suit."
(Emphasis supplied by me)
42. In the background of above admission made by Smt Susheelamma (defendant) in the suit filed by her namely, O.S No.6539/2006 which culminated in the execution of agreement of sale dated 05.05.2003, evidence of D.W.1 (Smt.Bhuvaneshawari) will have to be examined. It is not in dispute that plaintiffs filed the suit O.S.No.5439/2006 on 40 24.06.2006 and immediately thereafter defendant filed the suit O.S.No.6539/2006 on 20.07.2006. Though defendant Smt. Susheelamma was fully aware of these factual aspects and undisputedly at her instance agreement of sale dated 05.05.2003 having come into existence, yet she conveniently did not enter the witness box in O.S.No.5439/2006 and allowed her daughter to enter the witness box as D.W.1 on her behalf as Power of Attorney holder and only on conclusion of her cross examination she entered the witness box in O.S.No.6539/2006 as already noticed.
43. In fact, defendant in her written statement filed in O.S.No.5439/2006, at paragraph 7 categorically admit that agreement of sale dated 05.05.2003 was complimentary to sale deed dated 19.02.2003 and her admission in the written statement reads as under:
"7. With respect of the para 6 xxx schedule property. This allegation is out of ambit of the sale deed dated 19.02.2003 and the complimentary agreement dated 05.05.2003."
44. Though defendant in the written statement has not whispered anything with regard to receipt of advance 41 amount of Rs.1,50,000/- on 05.05.2003 from the plaintiffs, D.W.1 in O.S.No.5439/2006, in her cross examination dated 05.09.2009 admits the receipt of advance amount of Rs.1,50,000/- from plaintiff. However, she denied the suggestion about the manner in which said agreement of sale came into existence namely, after the husband of the second plaintiff insisted for Panchayat being conveyed. However, her denial cannot be eschewed inasmuch as her mother Smt. Susheelamma who got herself examined as P.W.1 in O.S.No. 6539/2006 has admitted to this fact which admission is already extracted hereinabove. It can also be noticed that at the same time, D.W. 1 admits that it was decided in the Panchayat that Smt Susheelamma had to execute a deed of agreement in favour of plaintiffs.
45. Thus, it would emerge from above narrated facts, pleadings and evidence that sale transaction dated 19.02.2003 between plaintiffs and defendant was not an out and out sale transaction but was circumscribed by certain other transactions and it is because of those transactions sale deed was executed by second plaintiff in favour of defendant and immediately thereafter a Panchayat came to 42 be convened wherein it was resolved that defendant Smt Susheelamma would execute an agreement of sale and plaintiffs would pay a total consideration of Rs.5,68,000/- to enable the defendant to execute a sale deed back in favour of the plaintiffs. Pursuant to the said Panchayath and as resolved therein, plaintiffs had paid on the date of agreement a sum of Rs.1,50,000/- to the defendant which has been duly acknowledged by the defendant. Thus leaving a balance of Rs.4,18,000/- payable by plaintiffs to the defendant. There is no serious dispute on this factual aspect.
46. Now turning back my attention as to whether time was the essence of contract between the parties. It cannot be gain said that in a sale transaction relating to immovable property time would be the essence of the contract until and unless expressly agreed thereto and the unclinching evidence available on record would establish this fact together with the reasonable steps that have been taken by either of parties in this regard. In this background the term of the contract in question is to be examined and it would indicate that cause for birth of agreement of sale dated 05.05.2003 43 was the sale deed dated 19.02.2003 executed by the plaintiffs in favour of the defendant. Clause No.2 in Ex.P-3 reads as under:
"2. The purchaser has this day paid a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) as advance the receipt of which the Vendor hereby acknowledges. The balance of the agreed sale consideration, namely, Rs.4,18,000/- (Rupees Four Lakhs Eighteen Thousand only) shall be paid by the Purchaser to the vendor on or before 60 days from the date of the agreement (i.e., 25.04.2003) and get registered the house to their names or to their representatives, before the concerned Sub-Registrar. It is agreed between the parties to this deed that time is the essence of contract."
47. It was also agreed between the parties that in the event of purchaser failing to pay the balance consideration on or before the stipulated date, the agreement holders should vacate the suit schedule property and possession to be delivered to the Vendor Smt N.Susheelamma. The said clause reads as under:
"3. In the event, the purchaser fails to pay (agreement holders) the balance sale consideration of Rs.4,18,000-00 (Rupess Four Lakhs Eighteen Thousand only) on or before the stipulated period of 60 days (i.e., from 25.04.2003 to 44 25.06.2003) and get the sale deed executed and registered in their favour, the agreement holders shall vacate the possession and deliver the schedule property to the vendor Smt. N. SUSHEELAMMA, which possession is now enjoyed by Smt Nagamma and K. Basavaiah, who are the agreement holders by receiving back the advance amount of Rs.1,50,000-00."
It is because of these two clauses the defendant has contended that time was the essence of contract.
48. As already noticed hereinabove and at the cost of repetition, it has to be noticed that under the agreement of sale dated 05.05.2003 which is marked as Ex.P-3, there is no mention with regard to sale of undivided share although defendant had purchased 1/3rd undivided share under sale deed dated 19.02.2003. This would indicate that vendor was interested in recovering the amount said to be due from Sri Mahadevaiah for which transaction the plaintiffs had stood as guarantors and not the property. As contended by the defendant if the transaction between herself and the second plaintiff was an outright sale there was no compulsion for the defendant to enter into an agreement of sale with plaintiffs on 05.05.2003. In this regard recitals of 45 agreement of sale dated 05.05.2003 - Ex.P-3 will have to be noticed, since it fortify the view that defendant was interested in recovering the money rather than purchasing the property. It has been stated in the agreement of sale dated 05.05.2003 as under.
"WHEREAS the Vendor xxx Bangalore, as such Smt. Nagamma (Vendor) is in the possession and enjoyment till date, and now, she has approached Smt. Susheelamma N to return the schedule property on humanitarian basis as such, she had agreed to meet all her demands and expenses incurred by Smt. Susheelamma N by registration of the Absolute Sale Deed on 19.02.2003)"
(Emphasis supplied by me)
49. This recital in the agreement would indicate that within a period of 2½ months Smt. Susheelamma has agreed to reconvey the suit schedule property in favour of Smt. Nagamma and her husband. In fact both D.W.1 in O.S.No.5439/2006 and P.W.1 in O.S.No.6539/2006 have categorically admitted that there was a Panchayat held and on dispute being resolved at said Panchayat it was resolved to call that defendant would execute agreement of sale in favour of the plaintiffs and plaintiffs would pay a total sum of 46 Rs.5,68,000/- and as such said agreement - Ex.P-3 took its birth as otherwise it would not have come into existence at all. These sequential events which has led to agreement of sale dated 05.05.2003 coming into existence have been lost sight of by the trial Court and as such, it has to be held there has been non appreciation of material evidence available on record and also erroneous appreciation of available evidence by the trial Court.
50. Yet another factor which requires to be noticed by this Court is, undisputedly possession of the suit schedule property continued with the plaintiffs even after execution of sale deed dated 19.02.2003. Agreement of sale is dated 05.05.2003. If really the said sale was an outright sale and the parties did not intend to act upon, then agreement of sale - Ex.P-3 would not have come into existence and it cannot be expected of a person with ordinary prudence would have kept quite for a period of one year to seek possession of suit schedule premises.
51. It is no doubt true that plaintiffs had also not taken steps to call upon the defendant to execute the sale deed 47 immediately after the agreement of sale Ex.P-3 came into existence. Readiness and willingness of the purchaser will have to be gathered not only from the contract but also from the subsequent conduct of the parties. If it were to be a simple agreement of sale that had been entered into between the parties, then the plea of the defendant would have merited acceptance. However, it is not so in the instant case. As already observed hereinabove the transaction in question relates to or revolves around another transaction which ultimately has lead to the execution of the sale deed dated 19.02.2003 by plaintiff in favour of defendant and thereafter agreement of sale dated 05.05.2003 being executed by defendant in favour of plaintiffs. Under the said agreement of sale plaintiffs have paid a sum of Rs.1,50,000/- and balance sale consideration of Rs.4,18,000/- was to be paid by the purchaser to the vendor on or before 25.04.2003 and get the sale deed registered in their names or to their representatives.
52. At the outset it requires to be noticed that under agreement of sale dated 05.05.2003, period of 60 days is sought to be reckoned from 25.04.2003. No reasons are 48 forthcoming for reckoning 60 days period retrospectively and agreement is silent. When defendant knew that time was the essence of contract and same is accepted for a moment to be so, still she did not take any steps in this regard and no reasons are forthcoming with regard to her silence on this fact. The very clause Nos.2 and 3 in the agreement enabled her to take possession of the suit property from the plaintiffs after returning the advance amount of Rs.1,50,000/- received by her. She has not taken any steps in this regard and for the first time i.e., 30.10.2004 she got issued a legal notice which is marked as Exhibit D-1 whereunder she called upon second plaintiff to deliver possession of the property in question. A perusal of Exhibit D-1 would clearly indicate that there is not even a whisper with regard to agreement of sale dated 05.05.2003. This notice has been duly replied by second plaintiff on 29.11.2004 as per Exhibit P-4 whereunder she has appraised the defendant about the execution of sale agreement dated 05.05.2003. She has narrated in detail as to how agreement of sale dated 05.05.2003 came into existence and the circumstances under which she executed the sale deed dated 19.02.2003. 49 Said notice was received by the defendant. Even thereafter defendant did not take any steps as expected of a prudent person to enforce her right under agreement of sale dated 05.05.2003. It is thereafter first plaintiff got issued notice to the defendant on 17.12.2004 as per Exhibit D-2 highlighting the manner in which sale deed dated 19.02.2003 came into existence and calling upon the defendant to redeliver the title of suit schedule property within fifteen days. Even thereafter also defendant did not take any steps to recover possession of suit schedule property. It is no doubt true that plaintiffs have not specifically called upon the defendant to execute the sale deed by receiving the balance sale consideration either under reply notice dated 29.11.2004 or in notice dated 17.12.2004 - Exhibit P-4 and D-2 respectively. However, both the parties remained silent. Thereafter, on 13.04.2006 plaintiffs got issued a legal notice as per Exhibit P-6 calling upon the defendant to register the sale deed in respect of suit schedule property by receiving balance sale consideration of Rs.4,18,000/- which notice came to be duly replied by the defendant by reply notice dated 22.05.2006 - Exhibit P-8 and contending inter alia for the first time that 50 plaintiffs have not complied with the terms agreed to under the agreement of sale dated 05.05.2003 Exhibit P-3. No reasons or explanation is forthcoming from the defendant as to why they did not raise a demand calling upon the plaintiffs to vacate the suit property till 2006 though the agreement was dated 05.05.2003. Pleadings and evidence in this regard is silent.
53. On the other hand, plaintiffs in the notice dated 13.04.2006 - Ex.P-6 have contended that they had demanded defendant several times to register the suit schedule property and defendant also did not assist the plaintiffs to recover the amounts due from Sri S Mahadevaiah. At paragraph 11 of the plaint, it has been pleaded as under:
"11. It is further submitted that even though plaintiffs are willing and ready to perform their part of the contract, defendants have not come forward to do her part of contract and ignored to perform her part of obligation of specific performance of executing the sale agreement dated 05.05.2003 in favour of the plaintiffs. In the written statement at paragraph 15 , defendant except contending that plaintiffs are not performed their promise between the period 25.4.2003 to 25.06.2003 nothing 51 has been stated with regard to the averment about plaintiffs not being ready and willing to perform their part of contract."
54. Section 16(c) of the Specific Relief Act mandates a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract would be barred to claim said relief. In the case of sale of immovable property, there is no presumption as to time being the essence of the contract. In other words, it has to be performed within a reasonable time. The plaintiff has to prove from the date of contract till date of filing of the suit he has always been ready and willing to perform his part of the contract. In the instant case, as already noticed herein above, at paragraph 11 of the plaint it has averred so and to substantiate his claim in this regard, he has produced letter issued by Sree Subramhanyeswara Co-operative Bank which came to be marked as Ex.P-9. A perusal of said certificate dated 17.10.2008 would indicate that loan was sanctioned to the first plaintiff on 12.11.2003 and it was not disbursed since the borrower did not come forward to execute the necessary documents. Trial Court 52 has held that plaintiffs have not established that loan application was filed prior to June, 2003 and it has also been held that plaintiffs have failed to prove that they had sufficient money with them before the expiry of 60 days time. Hence, trial Court has jumped to a conclusion that plaintiffs might have applied for loan after the period of 60 days and as such, it has arrived at a conclusion that plaintiffs did not have sum of Rs.4,18,000/- as on 24th June, 2003, namely, time agreed to by them under Ex.P.3.
55. In common sense, the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault or mistake of the plaintiffs and that they were capable of completing the said contract had it not been refused by the defendant. It has been held by Hon'ble Apex Court in the case of MST. SUGANI V/S RAMESHWAR DAS & ANR reported in 2006 AIR SCW 2606 as under:
"18. The basic principle behind Section 16 (c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a 53 personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.
19. Section 16 (c) of the Act mandates the plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost identical fact situation it was held by this Court in Surya Narain Upadhyaya v/s Ram Roop Pandey and Ors. (AIR 1994 SC 105) that the plaintiff had substantiated his plea."
56. As already noticed herein above, sale agreement dated 05.05.2003 was on account of the sale deed executed by plaintiffs in favour of defendant on 19.02.2003 and it was undisputedly and as admitted by the defendant herself, it came into existence when the Panchayatdars convinced both the parties that defendant has to sell the suit schedule property in favour of plaintiffs which she had purchased just two months prior to it and it is only after such resolution of dispute by Panchayatdars agreement of sale dated 5.5.2003 came into existence and on the said date, defendant received a sum of Rs.1,50,000/-. If really consideration had flown 54 from plaintiff to defendant i.e., Rs.1,96,000/- under sale deed dated 19.02.2003 - Ex.D-5, same would have been reflected in the agreement of sale. Nothing is mentioned in agreement of sale dated 05.05.2003. It is completely silent on this aspect. No explanation is forthcoming from defendant in this regard. Thus, a cloud is created over sale deed dated 19.02.2003 - Ex.D-5 and same is not cleared by defendant by offering plausible explanation. The certificate issued by the Shree Subrahmaneshwara Co-Operative Bank
- Ex.P-9 would indicate that loan had been sanctioned to plaintiff on 12.11.2003. The process had already commenced by Bank to pay the said amount to defendant as agreed to by plaintiffs. Thus, it cannot be said that plaintiffs have not been ready and willing to perform their part of the contract from the beginning. In the cross examination of P.W.1 dated 16.04.2009 he has stated that in the year 2004 Smt.Susheelamma refused to execute the sale deed. There is not even a suggestion made to the said witness about plaintiffs not possessing consideration amount payable to the defendant as agreed to under the agreement. On the other hand, plaintiff has stated in his cross examination 55 dated 16.04.2009 that inspite of his best efforts, defendant did not execute the sale deed. The cumulative effect of these admissions would not only indicate that plaintiffs have been always ready and willing to perform their part of the contract but they were also having sufficient resources to pay the balance sale consideration. The inaction on the part of defendant after completion of 60 days period i.e., on 25.06.2003 till she got issued legal notice on 30.10.2004 (for the first time) would also be a pointer to the fact that time was not the essence of the contract.
57. It has been held by Hon'ble Apex Court in AZHAR SULTANA vs B.RAJAMANI & OTHERS reported in AIR 2009 SC 2157 that while exercising discretionary jurisdiction to grant the relief of specific performance of a contract the Courts would be entitled to take into consideration the conduct of the parties as it would assume significance. It was also held that while examining the issue regarding readiness and willingness, it was not necessary that the entire amount of consideration should be kept ready 56 or the plaintiff must file proof in respect thereof. It has been held by the Hon'ble Apex Court as under:
"20. We are, however, in agreement with Mr. Lalith that for the aforementioned purpose it was not necessary that the entire amount of consideration should be kept ready and the plaintiff must file proof in respect thereof. It may also be correct to contend that only because the plaintiff who is a Muslim lady, did not examine herself and got examined on her behalf, her husband, the same by itself would lead to a conclusion that she was not ready and willing to perform her part of contract."
58. In the light of the above discussion, it would manifest that from the record and evidence of plaintiffs they would be entitled to get the relief and the plea of the defendant that plaintiffs have failed to prove the readiness and willingness will have to be rejected. In view of continued silence on the part of defendant from 24.06.2003 to 30.10.2004 plaintiffs cannot be denied the relief.
59. In this background, points - 1 to 3 formulated herein above are answered in favour of plaintiffs - appellants and against respondent - defendant and as such suit filed by plaintiffs in O.S.5439/2006 deserves to be decreed. 57 RE: POINT NO.(4):
60. As already discussed herein above, suit O.S.No.6539/2006 came to be filed by the defendant for possession of suit schedule property from plaintiffs on 20.07.2006 i.e., subsequent to the suit filed by plaintiffs for specific performance. Trial Court while adjudicating the issues formulated in the said suit (as extracted herein above) has answered issue No.2 with regard to breach of agreement dated 05.05.2003 which was alien to the said suit and was not required to be formulated and answered, but still, answered in the negative on the ground that suit filed by plaintiffs for specific performance has been dismissed. In other words, trial Court got swayed by the decree passed in O.S.No.5439/2006 dismissing the suit for specific performance. In view of the fact that suit for specific performance having been decreed, I am of the considered view that suit filed by the defendant against plaintiffs for possession will have to be dismissed by answering this point in favour of plaintiffs.
58
61. The very suit of the plaintiffs for possession having been based on the sale deed dated 19.02.2003 and the said sale transaction subsequently ended in an agreement dated 05.05.2003 giving right to the plaintiffs to sue the defendant for specific performance of agreement of sale in O.S.No.5439/2006 and the decree passed by trial Court having been negatived herein above by this Court, would consequently result in the suit in question filed by defendant against the plaintiffs for possession being liable to be dismissed. Hence, point No.4 formulated herein above is to be answered in favour of appellants (plaintiffs ) and against respondent (defendant).
RE: POINT NO.5:
62. For the reasons aforestated, judgment and decrees passed by trial Court in O.S.Nos.5439/2006 & 6539/2006 dated 13.01.2010 and 20.10.2012 respectively, are liable to be set aside.
RE: POINT NO.6:
63. First part of Rule 33 of Order 41 CPC confers on the appellate Court such power to pass orders in appeal as the 59 case may require as if exercising the original jurisdiction.
The second part contemplates that this wide power could be exercised by the appellate Court notwithstanding that the appeal is as to part of the decree only and it may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. It is based on a salutary principle to do complete justice between the parties.
64. Keeping this salutary principle in mind, when the facts on hand are examined, it would indicate that both parties are to be blamed for the faux pas situation which has been brought about by their own wrong doings. Undisputedly, plaintiffs had agreed to pay the defendant a total consideration of Rs.5,68,000/- as per the agreement dated 05.05.2003 - Ex.P-3 and on the same date, they had also paid a sum of Rs.1,50,000/- and thus, leaving a balance of Rs.4,68,000/- . Plaintiffs had contended that on account of refusal of defendant they could not get the sale deed registered in their favour or in other words defendant did not receive the balance sale consideration. In other words, the sum of Rs.4,68,000/- which was to be paid by plaintiffs to 60 the defendant has continued to remain with the plaintiffs themselves or in other words defendant has been deprived of said amount. Thus, if the plaintiffs are directed to pay interest on the said amount at the rate of 9% p.a. from 24.6.2003 till date, it would meet the ends of justice. Hence, it is hereby ordered that plaintiffs shall pay interest @ 9% p.a. on Rs.4,68,000/- from 24.06.2003 till date of deposit which shall be within three months from today.
65. In the result, I proceed to pass the following:
JUDGMENT
1) RFA No.848/2010 and RFA No.1251/2013 are hereby allowed.
2) Judgment and decree passed in O.S.No.5439/2006 dated 13.01.2010 by 17th Addl. Civil Judge, Bangalore is hereby set aside and suit filed by plaintiffs is hereby decreed and plaintiffs are directed to deposit the sum of Rs.4,68,000/-
together with interest @ 9% p.a. calculated from 24.06.2003 till date of deposit and it shall be deposited within outer limit of three months from today before the jurisdictional Court and get the sale deed 61 of the suit schedule property registered from defendant and on the failure of defendant to execute the sale deed, jurisdictional Court would be at liberty to appoint a Court Commissioner to get the sale deed registered in the name of the plaintiffs.
3) Judgment and decree passed by the 25th Addl.City Civil Judge, Bangalore dated 20.10.2012 in O.S.No.6539/2006 is hereby set aside and suit filed by the plaintiff is hereby dismissed.
4) In the peculiar circumstances of the case, costs made easy.
In view of disposal of these appeals, all pending applications stand rejected.
Sd/-
JUDGE *sp/SBN/DR