Karnataka High Court
Late Bharamappa Siddalingappa ... vs Shri.Booradappa S/O Shanmukhappa ... on 14 September, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
RSA No.100209/2020 (SP)
BETWEEN:
LATE BHARAMAPPA SIDDALINGAPPA NEELAGURI
SINCE DECEASED BY HIS LRS 1(A) TO 1(E)
1. SMT.SIDDAWWA W/O BASAPPA ULLIGERI,
AGED ABOUT: 64 YEARS,
OCC: HOUSEWIFE, R/O: GOVANAKOPPA,
TQ & DIST: DHARWAD-580001.
2. SMT.MAHADEVI D/O SHIVAPUTRAPPA BHARANNAVAR
AGED ABOUT: 61 YEARS, OCC: HOUSEWIFE,
R/O: GOVANAKOPPA,
TQ & DIST: DHARWAD-580001.
3. SMT.SHIVAKKA W/O KALLAPPA BENDIGERI
AGED ABOUT: 59 YEARS, OCC: HOUSEWIFE,
R/O: TIRTH, TQ: KUNDAGOL,
DIST: DHARWAD-581113.
4. SMT.LAKSHMAVVA W/O SIDDALINGAPPA NEELAGURI
AGED ABOUT: 50 YEARS, OCC: HOUSEWIFE,
5. KUMARI BHUVANESHWARI D/O SIDDALINGAPPA NEELAGURI
AGE: 16 YEARS, OCC: STUDENT
6. KUMARI BHUMIKA D/O SIDDALINGAPPA NEELAGURI
AGED ABOUT: 13 YEARS,
7. KUMAR MANJUNATH S/O SIDDALINGAPPA NEELAGURI
AGED ABOUT: 11 YEARS, OCC: STUDENT,
2
APPELLANTS 4 TO 7 ARE ALL
R/O: SURPAGATTI, TQ: SHIGGAON,
DIST: HAVERI-581205.
APP NO. 5 TO 7 ARE MINORS
REP. BY NATURAL MOTHER APPELLANT NO. 4
SMT.LAKSHMAVVA S.NEELAGURI.
.. APPELLANTS
(BY SRI.ASHOK R.KALYANSHETTY & SRI.GANESH RAIBAGI, ADVS.)
AND:
1. SHRI.BOORADAPPA S/O SHANMUKHAPPA SORATUR
AGED ABOUT: 45 YEARS, OCC: AGRICULTURE,
R/O: SURPAGATTI, TQ: SHIGGOAN,
DIST: HAVERI-581205.
2. SHRI.RAMACHANDRAPA @ BURADAPPA
S/O BHARAMAPPA NEELAGURI,
AGED ABOUT: 55 YEARS, OCC: AGRICULTURE,
R/O: SURPAGATTI, TQ: SHIGGOAN,
DIST: HAVERI-581205.
.. RESPONDENTS
(BY SRI.N.P.VIVEKMEHTA, ADV. FOR C/R1)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 04.11.2019
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI
DISMISSING R.A.NO.93/2011 CONFIRMING THE JUDGMENT AND
DECREED DATED 01.08.2011 PASSED BY THE ADDL. SENIOR CIVIL
JUDGE, HAVERI IN O.S.NO.25/2010 AND DISMISS THE SUIT IN THE
INTEREST OF JUSTNCE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
09.09.2020 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This is a defendant's appeal against the concurrent findings of the trial Court in O.S.No.25/2010 dated 01.08.2011 on the file of the Additional Senior Civil Judge, Haveri and the first appellate Court in R.A.No.93/2011 dated 04.11.2019 on the file of the I Additional District and Sessions Judge, Haveri.
2. Parties will be referred to as per their ranking before the trial Court.
3. Facts giving rise to the filing of the appeal briefly stated in terms of the averments of the plaint are that, the defendant was in need of money for his family and business, for which, he proposed to sell the suit property bearing R.S.No.30/1 measuring 10 acres situated at Chikkamanakatti village of Shiggaon Taluk. The plaintiff agreed to purchase the suit property for a consideration of Rs.5,50,000/- and in furtherance of which, the defendant executed an agreement of sale dated 27.11.2007 and 4 received a part of the consideration amount of Rs.3,00,000/- and further agreed to receive the balance sale consideration of Rs.2,50,000/- at the time of registration of the sale deed and also agreed to deliver the possession of the suit property once the registration of the sale deed takes place.
4. The defendant had agreed to execute the registered sale deed after clearance of encumbrances and for that reason had executed agreement of sale on 27.11.2007. It transpires that plaintiff requested the defendant to execute the registered sale deed, as he was ready and willing to pay the balance amount of Rs.2,50,000/-. The defendant on one pretext or the other began to postpone the date of execution of the sale deed. When things got worse waiting for more than two years, the plaintiff caused a legal notice upon the defendant on 15.04.2010 with a request to receive the balance consideration of Rs.2,50,000/- and to execute the 5 registered sale deed and consequentially deliver the possession of the suit property within 7 days from the date of receipt of the notice. The defendant refused to receive the notice, which came to be returned to the plaintiff. This became the cause of action to the plaintiff to file O.S.No.25/2010 on the ground that he was ready, ever ready, always ready and willing to perform his part of contract of payment of balance consideration of Rs.2,50,000/- and the defendant had failed to perform that part of the contract.
5. The trial Court issued notice to the respondent, who appeared and filed his written statement. It was contended that the averments in the plaint were all false and frivolous and not maintainable. It was further contended that description of suit property was not concerning the subject matter of agreement of sale. It was further denied by the defendant that he was in need of money for family and he had agreed to sell the suit 6 property for legal necessity to the plaintiff. He has also denied the fact that he had received Rs.3,00,000/- out of Rs.5,50,000/- on 27.11.2007 on execution of an agreement of sale. It was also denied that on one pretext or the other he postponed the registration/execution of the sale deed and contended that the plaintiff was not ready and willing to perform his part of the contract. It was also denied that legal notice was ever served upon him. The defendant further contended that the plaintiff was a labourer and he was not in a position to purchase the suit property.
6. On the basis of the pleadings of the parties, the parties were put to trial. Trial Court framed issues and recorded the evidence.
7. In order to prove his case, plaintiff examined four witnesses as P.Ws.1 to 4 and got marked Exs.P1 to P10. The defendant examined two witnesses as D.Ws.1 and 2 and got marked one document as Ex.D1.
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8. The trial Court on the basis of the evidence, inter alia held that the plaintiff was ready, ever ready and willing to execute the sale deed and the fact that the defendant had dodged the plaintiff for execution of the sale deed, decreed the suit with a direction to the defendant to receive balance consideration of Rs.2,50,000/- and execute the sale deed.
9. The defendant being aggrieved by the judgment and decree dated 01.08.2011 passed in O.S.No.25/2010 preferred a regular appeal in R.A.No.93/2011 before the first appellate Court. The first appellate Court dismissed the said regular appeal affirming the judgment and decree of the trial Court in O.S.No.25/2010 holding that the plaintiff was ready and willing to perform his part of contract and it is the defendant who did not come forward to execute the sale deed.
10. The defendant has preferred the subject Regular Second Appeal against the concurrent findings of the trial 8 Court as well as the first appellate Court directing the defendant to execute a sale deed in favour of the plaintiff.
11. I have heard Sri.Ashok R.Kalyanshetty, learned counsel for the appellants and Sri.N.P.Vivekmehta, learned counsel for the respondents.
12. Sri.Ashok R.Kalyanshetty, learned counsel for the appellant would contend that both the trial Court and the first appellate Court have concurrently erred in interpreting the actual purport of Section 20 of the Specific Relief Act, 1963 (for short 'the said Act') as the first appellate Court does not even consider the grounds on which the appeal is preferred. Insofar as it pertains to the averments concerning Section 20 of the said Act, he would submit that Section 20 of the Act itself is a substantial question of law, which has to be considered by this Court. He would place reliance on the following judgments. 9
i) Hemanta Mondal and Others Vs Ganesh
Chandra Naskar reported in (2016) 1
Supreme Court Cases 567.
ii) Sri.R.Narayanaswamy Vs Sri.A.V.Narayana Swamy reported in 2016 (3) KCCR 1935.
13. On the other hand, learned counsel for the caveator respondent No.1 supports both the judgment and decree passed by the trial Court in O.S.No.25/2010 and the judgment of the first appellate Court in R.A.No.93/2011 and would submit that Section 20 of the Act is considered in great detail both by the trial Court and the first appellate Court. He would further submit that the defendant was examined as D.W.1 and has admitted before the trial Court in his evidence that, he has other properties (non-suit properties). Hence, he would submit that very purpose of Section 20 of the Act that he would become landless if the decree of specific performance is granted or the one that is already granted is confirmed would not arise. 10
14. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the appeal papers.
15. The only submission made by the learned counsel appearing for the appellants with regard to purport and impact of Section 20 of the said Act qua the facts of the case. Section 20 of the said Act, is extracted hereunder for the purpose of ready reference.
"20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering 11 into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-
performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1.-- Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the 12 hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party."
16. To consider Section 20 of the said Act qua the facts of the case on hand. The undisputed facts in the present case are required to be noticed, which are that the plaintiff with an intention to sell the suit property for legal necessity and necessities of the family offered the same to the defendant for a total consideration of Rs.5,50,000/- and in furtherance of which, the defendant executed an agreement of sale that he has received an earnest money 13 of Rs.3,00,000/-. The plaintiff who was ever ready and willing to get the sale deed executed approached the defendant on several occasions which was met by the defendant by being evasive. When the defendant did not come forward to execute the sale deed, the plaintiff caused legal notice upon the defendant to receive the balance payment and execute a sale deed in 7 days. The defendant contending that he has not received the legal notice, continued to dodge the plaintiff for execution of the sale deed.
17. On this cause of action that the defendant has refused to honour the agreement by executing the sale deed filed a suit for specific performance in O.S.No.25/2010 before the Additional Senior Civil judge, Haveri. The trial Court on the basis of the pleadings put the plaintiff and defendant on trial on the following issues:
i) Whether plaintiff proves that, the defendant has agreed to sell the suit land Sy.No.30/1 measuring 9 acres 27 guntas of village Chikkamanakatti, 14 Tq: Shiggaon, for Rs.5,50,000/- to him and received amount of Rs.3/- lakh as earnest money and executed agreement on 27.11.2007?
ii) Whether plaintf proves that, he was ready, always ready and ever ready to perform his part of contract?
iii) Whether defendant proves that, he had signed on paper as security for repayment of his son loan?
iv) Whether defendant proves that, the market value of the suit land was Rs.2/- lakhs per acre on the date of agreement?
v) Whether defendants prove that, the suit of the plaintiff is barred by law of limitation?
vi) Whether plaintiff is entitle the relief of specific performance of contract of sale?
vii) What order or decree?
18. Answering issue Nos.1, 2 and 3, the trial Court held that the plaintiff was ready and willing to perform his part of contract, it was the defendant who did not come forward to execute the sale deed and perform that part of contract. Insofar as it pertains to Section 20 of the said 15 Act, the trial Court, answering issue No.6 has held as follows:
"I have perused the testimonies of DW.1 and
2. They have categorically admitted in the cross- examination defendant's family owns another non- suit land and plaintiff has got marked Ex.P.7. So, Ex.P7 is R o R of non-suit land stands in the name of defendant proves that, defendant's family owns another agriculture land. So, I am of the opinion that, the argument advance by the learned counsel for defendant holds no water. So, I am of the opinion that, admissions made in cross-examination of DW.1 prove that, as per contents of Ex.P.2, defendant was need of money and he was agreed to sell the suit property for Rs.5,50,000/- and received Rs.3,00,000/- as earnest money and executed agreement of sale on 27.11.2007 in favour of plaintiff. So, I am of the opinion that, in case of grant of specific performance of contract thee is no hardship to the defendant. So, I am of the opinion that, defendant has not made out his case U/Sec.20 of Specific Relief Act. So, I am of the opinion that, in case of refusal the main object of Ex.P2 will be defeated. So, I am of the opinion that, case law relied by the learned counsel for defendant is not applicable to the facts of present case. So, I am of 16 the opinion that, plaintiff has made out his case to grant relief of specific performance of contract. So, in view of above said reasons this Court held issue No.6 as in the "Affirmative"."
19. In terms of the afore-stated finding of the trial Court, it becomes unmistakably clear that D.W.1 before the trial Court admits in the cross-examination that his family owns another non-suit land in terms of Ex.P7. In terms of the evidence, i.e., oral evidence of D.W.1 and Ex.P7, the trial Court decreed the suit and passed the following order:
"Suit of the plaintiff is hereby decreed with costs.
Defendant is hereby directed to execute the register sale deed in respect of suit property bearing R.S.No.30/1 measuring 10 acre situated at Chikkamanakatti village of Shiggaon taluka in favour plaintiff by receiving balance consideration of Rs.2,50,000/- within 30 days from the date of this order.
Further directed to deliver the possession of suit property in favour of plaintiff.17
In case, defendant fails to comply the order of this Court, plaintiff is entitled to get register sale deed in his favour by depositing the balance consideration of Rs.2,50,000/- in this Court and further plaintiff is entitled for recovery of possession of suit property by due process of law.
Draw decree accordingly."
20. Thus, the trial Court had considered the purport of Section 20 of the said Act inter alia and then came to conclude that suit ought to be decreed, as the plaintiff was ready and willing to execute the sale deed, it was the defendant who did not come forward to execute the sale deed.
21. The first appellate Court by its order dated 04.11.2019 on considering the contentions advanced by the appellant/defendant at paras (i), (j) and (n) has held as follows:
"i. It is the contention of the appellants that they are not having any other property other than the suit property and if the specific performance is 18 ordered, they have not property for their livelihood and they will sustain irreparable hardship. D.W.1 in his cross-examination has deposed as follows:
¸À.£ÀA. 10/3:?3 JPÀgÉ 25 UÀÄAmÉ £À£Àß vÀAzÉAiÀÄ ºÉ¸Àj£À°ègÀÄvÀÛzÉ CAzÀgÉ ¸Àj.
j. Since another property was also standing in the name of the original defendants, the contention of the appellants in this regard can not be accepted. On the other hand, if the specific performance is not ordered, then the precious right accrued in favour of the respondent for getting the sale deed executed in his favour, gets defeated and comparatively, respondent sustains more hardship.
n. The Ld. Counsel for the appellants has relied upon the rulings reported in 2016(4) KCCR (SC) 2977 (Union of India vs. K.V.Lakshman and others) wherein it has been held that the first appeal is a valuable right and the first appellate court has the duty to appreciate the entire evidence and reported in 2016(3) KCR 1935 (Sr.R.Narayanaswamy vs Sr.A.V.narayana Swamy) wherein it has been held that it is the duty of the court to consider the hardship while granting the specific relief under Section 20 of the Specific Relief Act. This Court is bound by the principle of law laid down in the said 19 rulings and the said rulings are not applicable for the present facts and circumstances."
22. In terms of the afore-extracted findings of the first appellate Court, it cannot be said that both the Courts namely, trial Court and the first appellate Court have not considered the purport of Section 20 of the said Act. Both the Courts have concurrently considered and concurrently held that defendant has other agricultural lands and family business and Section 20 of the Act would not be applicable to the facts and circumstances of the case.
23. Insofar as the judgment relied on by the learned counsel for the appellants/defendants in the case of Hemanta Mondal(supra), the same is distinguishable on the facts of the case on hand inasmuch as the question with regard to ownership and possession were at dispute which had lead to the non-conclusiveness of the agreement between the parties, which are not the facts of the case on hand where the execution of agreement is not in dispute, as also in the light of the very evidence of D.W.1 admitting 20 that his family does possess separate lands and separate family business. Insofar as Sri.R.Narayanaswamy (supra) is also distinguishable on the facts obtaining in the case on hand without much ado. The Coordinate Bench of this Court on the facts obtaining therein was of the view that, both the Courts have concurrently erred in not considering the purport of Section 20 of the Act and remitted the matter back to the hands of the trial Court, in the light of non-consideration by both the Courts with regard to Section 20 of the Act. In the case on hand, the trial Court has considered in detail with regard to Section 20 of the Act as also the admission on the part of the defendant that he and his family have separate agricultural lands which is not subject matter of the suit. Hence, looking at the admission on the part of D.W.1 and Ex.P7, the judgment relied on by the learned counsel for the appellant/defendant is not applicable to the facts of the case on hand.
21
24. In terms of the mandate of the statute, as extracted hereinabove, if the case on hand is noticed, it would become unmistakably clear that it was the defendant who dodged the plaintiff who was ready and willing to execute the sale deed, for a considerable length of time. Thus, in terms of Section 20 of the Act, the defendant is not entitled to the relief that he has claimed in the subject appeal, as he has failed to perform that part of the contract. Granting a lesser relief of refund of the amount after 13 long years of the agreement for a consideration of Rs.3,00,000/-, as claimed by the learned counsel for the appellants would become unjustified due to sheer passage of time and devaluation of money and exponential increase in the value of land.
25. The successful plaintiff cannot now be non- suited on the ground of hardship, more so, in the light of the admission of the defendant with regard to other properties being available for the defendant. 22
26. No other ground is urged before this Court by the learned counsel for the appellants. Hence, for the afore-mentioned reasons, in my considered view, there is no substantial question of law that arises for consideration in the present appeal.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE MBS/-