Karnataka High Court
V J Issac S/O V J Joseph vs D Subramanya Bhat on 18 November, 2009
Bench: N.Kumar, C.R.Kumaraswamy
IN THE HIGH COURT or KARNATAKA AT BANCEALORE
DATED TI-HS THE 18"?" DAY OF NovEM13.,I«;Té§:'2€i;0§.§ ~..
PRESENT _ ,-_ _
THE HON'BLE MR.JUS'I'I_CE
THE HON'BLE 1v.:R.JtT'_sT;cE 'C;.1i;i:.UM;mAswA.1uY%
REGULAR FIRST APPEA;§\:o.876 'OF 2002
REGULAR Tz1:;sTVA1>--PgAL'i\éo::8i?"7" OF 2002
BET»*v*ET2.T§;5p'
V.J.I's_sac ' _
S/0 V.'J,Joseph';. "
30 years-,._V1\2I.ajje_ H._Ous7€,
Uruvalu Village and Post,
B't3':.i7'.;f.}'lvEA1'11'?. gady "Ta...1_.1_i1;,
...Appe1lan1:
Common
Sri K.Prasad Hegde, Advocate)
AND";
rfiubramanya Bhat
8/0 D. Shiva.Bhat,
u __FAged about 51 years.
Srinid}1iH0use,
Kemmai. Chikkamadnur
Village and Post,
Puttur Taluk. D.K. A
cvoimzigon; '
{By Sri.Sachin Kedhi1dya:',.AiA_Adv0'csre
M/s. Dha1'mashree.e'A'_ssocizfites, AVd'\r'0c'ates}
These Regular First___V"App..ea1s"are filed under
Section 96 of CPCVagV_ainsit 111,6;
Judgment and Dcere-edat.ed.n_'20;w_O4.2002 passed
in O.S.N0.40_/_1996.~--e»11f1'h--eyfijlev c$T;."i}1e Civil Judge
{S1'.Dn.), P.u'1'fi1iI.::D.:K_;§ ~.'d'is;nViss:ing the suit for
specific pe1§f'f01§rI'1a11c'e in REAV.No."8'76/2002.
J1i;_g1g':n%éi-maviictfpecie.e_;1a:ed 20.04.2002 passed
in O:.VdS.NOeA.~?73/17'994'*0'I1 the file of the Civii Judge
{Sr.D';_1.)--( 'Pu1c';.'{}1'4,*_D":_K;'*,.. 'partly decreed the suit for
posses-sion 21-rid'fx1es.13e~.p-rofits in RFA No.87?/2002.
5' These eippeals chiniiig on for Hearing this day,
N:~K.;u1r1_1ar, J.§"'de_1__iyvered the i'0110wi1f1g,:-
' JUDGMENT
«ATvh"evVse.t'vt;-'w0 appeais arise out of a common
jud._gn3__et11e:A«:'pAassed in two suits. O.S.N0.40/1996 was
fi}ed..'f0:'r specific performance of an agreement of
by the appeilani. herein. O.S.No.'73/E994 is
filed by respondent herein for possession against
the appellant in respect of the land whichpwas the subject matter of agreement of sale._H__""llhi§'~ixTrial Court has dismissed the suit performance and decreed t'he'"sui:'; for"p0s's.evss'£p0nj' V and mesne payment. Beihg:'«aggrieved.p by«.bQ_\thVV"the judgment and decree, Vth:e"*~..papphelilaiitpVha*s""p'r'eferr'e'd these two appeals.
2. For the '°"o1'"'~:V..'c-drivenience, the Parties ranks as referred to in the the suit for specific per.f0.rmaric..e."W' sdtiwbject matter of both the suits is situated at Uruval village, Be«1thanga'di Taluk, D.Kannada District. V' ..cQmp'r=omised in survey No.49 measuring .1 acre 30 "g_Vg'ur1'«tas. The said property along with right of schedule property. The plaintiff later that all the lands shown to him by were not in his possessiojn"ffVar1rl_T.th.e_' lands were also shown as oblliiptlze. possession. But the taken possession of the.landsi'fi9o'.mj4ftylhfiypDoslseslsvion of the defendants and a of this matter in of the Munsiff Court. were not disclosed by thedldlvftime of agreement or on coming to know of thejsuit £_:3elthafngVady Court. this plaintiff filed an tofwwifmplead him in the said suit.
plaintiff requested the defendant on many oeoasion to execute a sale deed in respect of the pr.ope1'ties to which he has marketable title and be legally eorweyed. Though the defendant .,,_9:greed, he did not do it. The plaintiff has also gmreVr'*nm"c11t7. L of this Court for possession and thc:~'jl"sani"e_' is pending.
4. . The plaintiff has sale price covered possession of the propertSf"V:evxc_eptllthleplpottgion which is the subject as part performance of coming into possession: effected vast improvenjlQr1'it4.s:'l;Jt,ollll like planting 1000 house Worth more than Rs.2,5b;'0_()O/l--ll;' the plaintiff filed a suit forpjalldecreel'tdiifectiing the defendant". to 'sell the 'A' lAsch:ed._fz:1l.e--_prvoperty and the appurtenant property. legally convey, except the subject ma.t§'tQr'--«l:&gi"l.lO.S.N0.64/1991 by executing necessary clleed within a stipulated time and on his E l,,/' in possession of the government': lands. In._'4i'aVct:,'la.tne plaintiff had got the lands measured purchase through private surfvefyor satisfied with the boundaries ofthe wargfaf'pr*onp.Ae'rtj*;«..p even the kurnki extent the._faAdfJi.=ac"tj1it:V land' possession, etc. kurnki privilege, the agreerriefrit He denied that the possession of the plot of the suit in o.s. we.64l€.:i.V9aJi:'§t.:' has been fully appraised: t'hVe:"v'sat'clf.:Ll'itigation. The plaintiff also filed an ap"plica.tion"- implead himself. The said .'ii.tig"atio--n: is._for niafndatiory injunction to remove the u'fe1'ice.e.V' .v.:T«hiVSV"~(T1€~f€I'idaf1l has been always ready and willing the property agreed to be conveyed .u"".__funderuthie agreement at all relevant time. The apparently had no cash amount to be paid h'"*..t,Q..e§t;his defendant towards balance purchase price. L/e had fitted bathshed with a eouldron installed 12 sprinklers of brass for and Gaytor sprayer. For the 1 submersible 5 HP Crornptlen Crompton pumpsel. Jet"
pumpset separately," Ii Mizhich he agreed to sell to for a consideration personally inspecting available land l'EJC0}I'Cifv_$V"C')m1KFV the plaintiff agreed and lakh as part of the eonsippderatilldng he had paid a sum of 2\l"t.""'dt.ha1t time. the defendant has 1h.alr.iadended"-.._Q've"r_v'_}the possession of the schedule prd}a44erty~.~'l_fl..-dint the time of handing over the 3"-'~___V'p0sses's,i__dn of 'A' schedule property, there were jV.'."2ld.AA(}'C?._Of..li'l37ielding areca trees, 120 Coconut: trees, 600 ud"*,p_epper Wines, 800 banana plants apart': from tiled it/, e H) electrified residential house with cowshed. The properties that were yielding 15 candies oi:
4000 coconuts, 500 kgs. Pepper, plants. Above improvements had bee_r.1~i~'«3.ll'.:l'::t*.'~.VCIlft":::CT1 in warg land and partly Time was the essence of the.__contr_alct. Cloinnjactl hadli» to be completed before dlfefendant was ready and property and execute the sale deved-Ma's Vp_e:1f 'agrpleeinent. He got issued"leg'a1.VlvT,noti§c'C_'egipresslilng his readiness and callinglluponl to pay the balance sale consiVderatillon_VVaIi1}':l todtake sale deed. The plaintiff i?'epl'j,{ on"2lV2'f0l3. 1994 stating that on receiving consideration the defendant should hand acres of kumki land The defendant onelrnore notice on 30.03.1994, making it clear j1h'a--i; the balance sale consideration is not paid he would be constrained to cancel the sale agreement. L A reply was sent. on 01.07.1994, "refusing to perform the contract. In those Circumstances, the..'p.l:a.i_fi.t;iff has not performed his part of the coni.ra_i;l¥, not entitled to continue in.....possjelslsioln» ."oflgth_Vel' property and agreement is tef'1mi1i_aiedl.'~_ _Ir'Ie" f¢illie_id,il'1fi:e said suit for possession. lThe VV1'1'.H_V€1}'S;[v£i'[V€.fi1'C~I3'{ was"
filed contesting the fsaid iantls out in the piaint in o.s. No"."4'io/i~9_g;.5'i..
8. E{«fOJ£'C'S;ai.lCi.::V}5l't3«E1.Clli1'1gS, the Trial court has 'issues:
in O.S.N"o._4iOv/ll'9'.9S_ ° l
1. __§;Wl1ethenr'V._.ihe'V description of the . '-._ "properties jofoposed for sale under agreement is correct'?
ih e cl efendani is ap_pra--.ised of the iiiigaiion in O.S. NvOA.64"/91?
Whether plaintiff is entitled to 'gseek specific performance for sale "of plaint "A' schedule properiy excluding the properly which. is subject matter in O.S. No.64/91'?
3. Whether plaintiff further proves'-'*.._ that the defendant. has corrmiitted "
breach of the terms and e0ndi1'ig.:isV"---ui:'*.s.f of the suit agreement. and the__rfeby.f_'---.. became a defauiter?
4. Whether defendantv-is'*-entitied"-to resist p0ssessi0nI_ anti') scheduie property "has. A' seC'..53.-fig. " ' Transfer of pr0p'er_ty A'c.t'?" >
5. Whether the couEt._£"ee_ paid the piaint is not coijre-C.t"L?--. "
6. What decree
9. an order ciubbing both the suits'i'~Q_1*aV'rec0rding of common eVidence_.._ D.aSz:_h1'a.n1ariyfa: Bhat was examined as anf:sdC'V.:J.i't--SS31CiWtJV"a'Sfexamined as DW].. Plaintiff pr(')"':_i_.u"ee'Vcia. which are marked as Exs.P1 the defendants produced 21 ~.f."_j'dQCv1.,irnents,fwhieh are marked as EXs.D1 to D2}. ii/it 2%}
10. On consideration of the af0res_atd'*:"oi"a_V1 and documerltary evidence on 1'ec0z"d';.__th'e,"'?r*iadI Court held that the ag1'eemer:'t'"mOt'*sate .ertt'e.1'e:d'--:i'11t'o between the parties is prQVedA:'iV.__e:;--_Vt11edafg.r'e»eme--fi't.fio'f_x sale dated 15.04.1993. VI--.tj"'i1»e1d.V.that.'t:_l1e'gWp1'atnt,iffdV was appraised of t11ve__1itig.a't'i«cdV_:r3- 'i'n.'.O.'$«."'NoA;d64/1991 and the contention t11Vta_'t "I1.et:~t':§w;'i~S'¢:_fi.:Qt.V.aware of the said held that the defendant performance his part 0fthe_c'@;ht;t'a:c_t ready to execute the sale deiéid sale consideration.
It heicl thautdt itdish"the:_"_.'p1atntift' who committed the breafiéhvef thedldtermsof the agreement as he was not _iaA:qp-:ir'~-.Wi11ing to pay the balance sate c'cri's.iVdeVfaAi"'»i.Oii;"hand take the sale deed. The .defe'.ftdav'-z9:1t'v<>.v:'as not in a position to legaiiy convey u"d.'Au"'t:he.ta_.prdperties to be sold especiaily which is the 'f;_st;tb'j't:'¢t matter of O.S.No.64/1991. It held that V ..'_4"w--hen the plaintiff restricted specific performance in N].
Ex.) the suit only in respect of 'A' schedule property excluding the property which is the sL1bjec.'t'*ir:n«artver of o.s. No.64/1991 contending that __1;'l::.ell4Afst'1p:'n=i Rs. 5,90, ooo/~ paid wo1,r1.,d 56-» .« .. jjj'_«;V5'¢i'eVqt1ai.i_e' it . consideration for the said ext'ent;"'o.t' p'1=.op~elrtyl :i'is.pn.o't entitled to specific perforrnancelloflthe agr:eve.nie.Vntlo§tl' sale. As the breach is cornn__1:i"tt:ed._»by .t'he:vp1a.i?ntiff, he is not entitled to statijitolfy ;pro"t_eot'iopn conferred on him under Section 5.3A._ofVthie 'll*'17.a«n*.s'fer of Property Act. Therefo_.re::1ittlsulit of the plaintiff for speleific pelrilo-»1jni.iar1--oe"--an'd decreed the suit of the dei"endanli'rr__flo1f iecoV'ery of possession and it was Illadfli it C~onditio.nval 'V that only on payment of received by the defendant, from the has to delivery the possession. In W _ thellevent plaintiff not delivering the possession .«_.such amount being tendered, liberty was l_lr~__re._ser\}ed. to the defendant to approach the Court for :l_4"'e;xecu.tion of the decree. Aggrieved by the said specific performance in respect of the saiclfei'-and. When the plaintiff has been put in part performance of agreement of sale, 'Seet:i_eo.n g of the Transfer of Property Acififgwisf"attfracrtedde.anVd'V"t:hVe Trial Court is not justified in deeV1'ii\fer'y.VV of possession. Therefore;*v..e_:ehre subniiitfs the judgment and deeree,_of the 'i"ifriaii..._Cour't"is"Vvitiated and liable to be set' learned counsel appearing; for the..:reds'p'o..nde":it supported the jud gm e 11 t a; ti :4;-é e 1__ C o u rt.
12. in V' the 'o'f.__e"th'e aforesaid facts and rivai eon--tentio"i1.s.'-t'he"- points that arise for our e'on's.idevrati--,0.n "tare ashfnder:
the plaintiff was ready and .' wiiiifngi' to perform his part of the Contract?
'' (v2'}*-.._ Whether the suit filed by the plaintiff Afor specific performance in respect of the portion of the property agreed to 3 9 registered sale deed and confer title on p1aint:i_f_f, he is ready and willing to abide by the agreement': or else he may execute a sale':'--deAedffor7=1 acre 30 cents warga land bymaking"HapAfior't1i.ona"t_Vedit' sale price. As far as kumki, b:agt;?:i'~an'd~.agrneii the defendant may be aciV_i":-:.ed to acqu'iVr€;._:ti»t'.1e~'and!' thereafter execute necessa_1f___xf'~sa'}Ve dee'd-i_n favour of plaintiff. The1*ei'o1*e;« reiterated his earlier stand ige. nQ.t""1'*eady' to perform his part of4.t.1§--;,¢e _:na_n1:e1'3'ziV;:j'aVjIr11ent of balance sale consivé:lAer'--a'tion'r U.'OOO/ -- and take the sale deed in"*._tern1xs_'4o."f_ agreement. Now, he re.s.tricted.: this 1'i'gV';'hr~:¢vt_o__et.ake the sale deed only in re'spec1;,_Vo.f=_wa~rge1 iancl not for the entire consideiragtivon"_";ag':?e'ed under the agreement of sale, VV.'f buL forka "part5.: consideration. Thus he was not i"or even part performance of the V'--.V_agifee'metit. of saie.
30
15. Section 12 of the Specific with Specific performance of Part of ' provides that:
[1] Except or otherwise'._p'r_ovided "in: the, " said section, the'Court,_sha11:ncAtv(:1ire_ct M the specific per1.'or'rnpancei..ofaa '*pa'rt "or a contract. d [2] Where a party 'ij.O3'EL.C4T)i'1,1.'}'~2'1C'L is unable to perform the whofie _oif"hi"s. part of it, but the which"; Viniust be left unp.e:rfo_rm;ed "'be4a'1~.g--.V_ only a small prop0e}i'etiVon"--pto: 'thee .Who1'e~"in Value and a'dm.it1:s,....*QfVc.e=,_1jnperis'a_'tio:1 is money, the c_oufrt;_ma3r,._a~ijf_-the suit of either party,
-------- ~-direct'I:ihegspecific...performance of so rri'u.ic.h_& of --_th_e contract and can be A '~pevrfo'r.Vin,peed., award compensation in " pp 1tr1on'e.y'£o'r V't"h_e"'d"eficiency. W:11_er'eUa party to a contract is unable to p"e-rfvorrn the whole of his part of it, . and the part which must left '«.fu_Vnpe1*for111ed either W * forms a considerable part of the " " whole. though admitting of ."_'_' LO \---I compensation in money; or ' [13] does not admit of compensation in money:
he is not entitled to o'otai'r1 a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform 1/ 34 consideration for the said portion. in the before the court also he made it very consideration of Rs. 6,9O.0OO/~~--._ ' it agreement is to be treated as c:o_An'*sidte~rat.ion 'A' schedule property, is a_ the-L' property agreed to be so1dp_..aui'1'd_'a.,_Vsaie'*CIeec1Vi§is to be executed. Thus Alias made his intentions ver =:t1ear,'t'h'at"he_i's notptwiiiin to acce t part performaVnc':e,._V_ ~ "
18. same judgment, the Apex Cobuirt' der:
._ivs'ti'ue- that a party can elect to pabfttgge-e1'fo1'mance of the co11t1'aCt/ _ag_rAe«ein:e*n_i at any stage of the litigation. of a suit for specific of the Agreement and not uavertrivng that the party was willing to :.__acVVc"ept performance in part does not V*..preciude a party from subsequently electing to accept: pe1"fo1'Inance in part. L/ executing a sale in respect of the entirem._p'rdp.e;rt'3{. instead of seeking for part perf0rman'c7<'e_<::S has done is he has pieadeidiii"a1to'geth:ei'ig_afnetv contract. He wants considerati0__n:'*_a1read--y "ag.reed~_t"o_ be paid is to be treatedfats a ur:.on.s_i'_de';a't'iV0n int respect of 'A' schedllziié. ree3AI§'3"t:'(:t*'bi' which defendant is deed. The plaintiff t't::V'vv'Vaccept the part perforniane-e"'i'b_nVagreeinent. of sale. it is in on appreciation of the bn the point has rightly held thatxthhe_piainAtfi"i7f:.was not ready and willing to perfc-i;.n1i'*his t5a~ri.____e_&f. the contract. The said finding V" Ca:1"IT1_Ot,v'b'Cg "'{Q1,1U.d fauit with and no case for in!"er.i:'e1;.enC:-eftfifvith the said finding is made out. The defendant in his written statement has hgsfieciiicaiiy stated that the plaintiff indulged in accusing the defendant of not making available 11 acres of land solely with t/..
44 respect: of the property of which the_.__ transferee has taken or continued...ih-_:"._ possession, other than a expressly provided by the terms?"
contract: ._ Provided that nothing 'shalt' affect the rights of a trarisjeree consideration who has no notice of thev'vicontract' the part }3€U'bnr1ancethere0f.~i',,, it it
23. For the appi'ieat'ioi:.,fiof V"»sLaid provision, the plaintiffftrairisfefee setihnpvivthe said plea should not only be ptit in posses'sioii« performance of the agreement of sale and has "c'.on'e son1"e"act in furtherance of t.he contract. " '~ But he.rn'nst.__have'perforrned or is willing to perform his part of when he is ready and willing to perform his part the contract., he is entitled to protection under Section CV53~A of ithev Transfer of Property Act, in which event, the v.:tv1'ansferor or any person claiming under him shall be debarred ' froin enforcing against the t-1-ansi'eree any right in respect of the 46 The trial Court rightly decreed the suite of the del'e'hdei111:."'l':£)r possession and held that the benefit of Seetiozj:'*53_¥A':llsl available to the plaintiff. We do noltsee T13' interfere with the said finding of tlhe:"11,&rla'1:_' eebuft. we pass the following order:
Both the appeals _are dismlissett Parties to bear theirlcwn Co_si;<§,:. 2S;1;b/xsp/--