Bangalore District Court
Munirathnamma M P vs Deeksha S Gowda on 12 March, 2025
KABC010181822023
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS
JUDGE,
BENGALURU.
DATED: THIS THE 12 TH DAY OF MARCH, 2024
O.S.No.4340/2023
Plaintiff:- M.P. Munirathnamma
Aged about 49 years,
W/o V. Srinivasa Murthy,
R/at Flat No.104, 1 st Floor,
Sujatha Residency,
site No.22 and 23,
6 th Cross, Nisarga Layout,
Basavanapura Main Road,
Krishnarajapura,
Bengaluru-36.
(By Sri.M.K. Shivaraju.,
Advocate)
-vs-
Defendant:- Mrs. Deeksha S. Gowda,
2 O.S.No.4340 of 2023
Aged about 29 years,
D/o Late Srinivas & Late
Sujatha,
R/at No.22 & 23, Sujatha
Residency, 6 th Cross,
Nisarga Layout, K.R. Puram,
Bengaluru-36.
(Exparte)
Date of Institution of the : 11.07.2023
suit
Nature of the Suit : Specific Performance
Date of commencement :
of recording of the 13.08.2024
evidence
Date on which the : 12.03.2025
Judgment was
pronounced
Total Duration : Years Months Days
01 08 01
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
3 O.S.No.4340 of 2023
J U D G M E N T
That, plaintiff has filed this suit for specific performance of the contract to enforce agreement of sale dated 16.09.2020.
2) The averments made in the plaint in brief are as under:-
a) The plaintiff submits that defendant is the absolute owner in possession of flat No.104, 1 st floor in apartment known as 'Sujatha Residency' constructed on site No.22 and 23. The site No.22 and 23 were formed in Sy.No.33 as per conversion order No.BDA/ALN/S/A/CR.26/93-94 dated 23.10.1996. The plaintiff submits that one Sujatha mother of the defendant has purchased site No.22 and 23 as per Sale Deed dated 20.02.2007 and her name was entered in the property extract pertaining to suit 'A' schedule property. It is contended by the plaintiff that on 25.06.2010 Sujatha died leaving behind her Srinivasa-4 O.S.No.4340 of 2023
husband, two daughters- Dr. Manasa and defendant as her clause-I heirs. It is further submitted by the plaintiff that both the daughters of Sujatha i.e., Manasa and defendant have executed Release deed on 16.07.2011 in favour of their father Srinivas releasing their right, title and interest over the suit 'A' schedule property. Accordingly, Srinivas become absolute owner of the schedule 'A' property and katha pertaining to suit property was also transferred in pursuance to Release deed.
b) The plaintiff submits that V. Srinivas -husband of the plaintiff had taken suit 'B' and 'C' schedule properties on lease basis from father of the defendant vide lease Agreement dated 25.03.2019. The plaintiff claims that under lease Agreement an amount of ₹.8,00,000/- was paid to the father of the defendant and V. Srinivas Murthy- husband of the plaintiff 5 O.S.No.4340 of 2023 continued in occupation and enjoyment of suit 'B' and 'C' schedule properties. Subsequently, father of the defendant was in need of money to meet his legal necessities, had offered to sell suit 'B' and 'C' schedule properties in favour of plaintiff. As per the negotiations, father of defendant has agreed to sell the suit 'B' and 'C' schedule properties for a sale consideration amount of ₹.35,00,000/- and also executed an Agreement of sale on 16.09.2020. Plaintiff submits that as on the date of execution of Agreement of sale the plaintiff has paid an amount of ₹.16,00,000/- to the father of the defendant. The details of the amount transferred through RTGS were mentioned at plaint paragraph No.5.
c) It is submitted by the plaintiff that father of the defendant by name Srinivasa died on 24.05.2021 leaving behind him defendant and Dr. Manasa as his 6 O.S.No.4340 of 2023 legal heirs. Thereafter, Dr. Manasa had executed a Release deed on 23.06.2022 in favour of defendant and thus, defendant became absolute owner of 'A', 'B' and 'C' schedule properties. It is contended by the plaintiff that defendant herein is duty bound and under obligation to comply with the terms & conditions of the Agreement of sale dated 16.09.2020 executed by her father in favour of plaintiff.
d) The plaintiff claims that she was always ready and willing to perform her part of the contract and get the Sale Deed executed by paying the amount. It is further submitted by the plaintiff that on 06.06.2023 plaintiff got issued a legal notice calling upon the defendant to execute the Sale Deed in terms of Agreement of sale dated 16.09.2020. However, defendant evaded to receive the legal notice and has not executed registered Sale Deed. It is submitted by 7 O.S.No.4340 of 2023 the plaintiff that behind the back of plaintiff, defendant is trying to convey the property to third parties for higher price and also trying to curtail the right and interest of the plaintiff over the suit schedule properties. Hence, plaintiff submits that she has filed this suit for specific performance of the contract seeking direction to the defendant to execute the registered Sale Deed in terms of Agreement of sale dated 16.09.2020 in respect of 'B' and 'C' schedule properties. The plaintiff is also claiming for perpetual injunction restraining the defendant from alienating the suit schedule property.
3) In response to the suit summons issued, defendant has not appeared and contested the suit. Hence, defendant has been placed ex-parte. 8 O.S.No.4340 of 2023
4) As defendant is placed ex-parte, this court directed the plaintiff to lead oral and documentary evidence. Accordingly, the plaintiff is examined as PW.1 and two witnesses by name G.Ramachandra and Raghavendra C., were examined as PW.2 and PW.3. 7 documents were marked on behalf of plaintiff.
5) On the basis of the pleadings following points arose for determination:-
1. Whether the plaintiff proves that the father of the defendant V. Srinivas had executed an agreement of sale dated 16.09.2020 agreeing to sell the suit schedule property for a consideration amount of ₹.35,00,000/- and received part consideration amount of ₹.16,00,000/- as on the date of execution of agreement of sale?
2. Whether plaintiff proves that she is always ready and willing to perform her part of the contract?
3. Whether suit is within the period of limitation?9 O.S.No.4340 of 2023
4. Whether the plaintiff is entitled for the relief of specific performance of the contract by enforcing Agreement of sale dated 16.09.2020?
5. What order or decree?
6) Heard counsel appearing for the plaintiff. Perused the oral and documentary evidence available on record and my findings on the above points are as below:-
Point No.1: In the Affi rmative
Point No.2: Plaintiff was ready and
willing to perform her part
of the contract
Point No.3: Suit is within the period of
limitation
Point No.:4 Plaintiff is entitled for the
relief of specific
performance of the
contract
Point No.5: As per the final order
for the following:-
REASONS
7) Point No.1 :- That, present suit is filed
seeking the relief of specific performance of the
10 O.S.No.4340 of 2023
contract to enforce Agreement of sale dated
16.09.2020. The claim of the plaintiff is that father of the defendant by receiving ₹.16,00,000/- as advance sale consideration amount, has executed Agreement of sale dated 16.09.2020 and after his death another sister of the defendant has relinquished her share in the suit property in favour of defendant and as such, defendant is liable to execute the Sale Deed in terms of Agreement of sale dated 16.09.2020.
8) The fundamental principle of law is that the plaintiff when he comes to Court must prove his case and he must prove it to the satisfaction of the Court. His burden is not lightened because the defendant is absent. On the other hand, the responsibility increases. When the defendant is set ex-parte, the burden is heavy on the Court, as it would not have the advantage of defence. Therefore, the Court should be extra careful 11 O.S.No.4340 of 2023 in such cases and it should consider the pleadings, & evidence and should arrive at a finding as to whether the plaintiff has made out a case for a decree. Keeping this principles I have perused the oral and documentary evidence adduced by the plaintiff in detail.
9) In order to succeed in this suit the plaintiff has to positively prove that father of defendant has executed Agreement of sale dated 16.09.2020. In order to prove the execution of Agreement of sale dated 16.09.2020, plaintiff got herself examined as PW.1, she has reiterated the examination-in-chief affi davit. There is no cross examination of PW-1 and whatever stated by PW.1 remained unchallenged. Apart from, the evidence of plaintiff, she has also examined two witnesses by name Ramachandra G and Raghavendra C., who have signed the Agreement of sale. PW.2- Ramachandra and PW.3- Raghavendra 12 O.S.No.4340 of 2023 have clearly deposed that father of the defendant Srinivas had executed Ex.P.1- Agreement of sale in favour of plaintiff herein agreeing to sell the schedule property. It is also stated in the examination-in-chief that sale consideration amount was fixed at ₹.35,00,000/- and an amount of ₹.16,00,000/- was paid as part consideration amount. The evidence of PW.2 and 3 also remained unchallenged and there is nothing available on record to disbelieve the version of PW.2 & 3 regarding due execution of the Agreement of sale. Therefore, it has to be held that the suit property was agreed to be sold in favour of plaintiff by father of defendant for a consideration amount of ₹.35,00,000/-. Hence, in my considered view, from the evidence of PW.1 to 3 plaintiff is able to establish due execution of Ex.P.1- Agreement of sale.
13 O.S.No.4340 of 2023
10) On perusal of Agreement of sale it is clear that the property was agreed to be sold for a consideration amount of ₹.35,00,000/- and father of the defendant has received ₹.16,00,000/- through bank transfer. Details of Bank transfer and the amount transferred is mentioned in the Agreement of sale which is in conformity with the averments made in the plaint. Therefore, in my considered opinion, the plaintiff has shown that on 16.09.2020 father of defendant has executed Agreement of sale in favour of the plaintiff agreeing to sell the suit schedule property for a consideration amount of ₹.35,00,000/- and paid ₹.16,00,000/- as advance sale consideration amount.
11) I have perused record to ascertain whether defendant is having right or title over the property to transfer the same to the plaintiff. Ex.P.2 is the certified copy of the registered Sale Deed dated 20.02.2007. On 14 O.S.No.4340 of 2023 perusal of Ex.P.2 it is clear that mother of the defendant by name Sujatha has purchased the site No.22 and 23 from one K.V. Narasimhaiah under registered Sale Deed for a consideration amount of ₹.16,15,000/-. It is specifically averred in the plaint that Sujatha died leaving behind her, her husband V. Srinivas and two daughters by name Dr. Manasa and Smt. Deeksha defendant herein . Ex.P.3- Release deed makes it clear that both the daughters of Sujatha by name Manasa and Deeksha have relinquished their share in the property inherited by them after death of their mother Sujatha in favour of their father Srinivas. Therefore, as per Ex.P.3 Srinivas became the absolute owner of suit site No.22 and 23. It is not in dispute that there is an apartment building in the suit property. The executant of Agreement of sale dated 16.09.2020- V. Srinivas has clearly stated that he has agreed to sell flat No.104 constructed in the site No.22 and 23. It is 15 O.S.No.4340 of 2023 clear from records that Srinivas died leaving behind him defendant- Deeksha and one Dr. Manasa and as per Ex.P.4 Dr. Manasa has relinquished her right in the schedule property in favour of the defendant herein. Therefore, in view of registered Release deed executed by the joint owners of suit property, defendant became the owner of site No.22 and 23, wherein residential apartment is constructed and suit C schedule property i.e., flat No.104 is in existence. The katha extract also shows the name of defendant. Therefore, in my considered view defendant is the owner of the property and her father had executed Agreement of sale.
12) Under law, legal heirs of executant/ Agreement of sale is liable to execute the Sale Deed and contract can be enforced against the legal heirs. Therefore, defendant being the legal heir of deceased V. Srinivas who has executed Agreement of sale dated 16 O.S.No.4340 of 2023 16.09.2020 marked at Ex.P.1, agreement can be enforced against defendant. Therefore, in my considered view the documents produced clearly establishes that the suit property is owned by defendant, there is an Agreement of sale in favour of plaintiff dated 16.09.2020 and same can be enforced against the defendant herein. Accordingly, point No.1 is answered in the Affi rmative & in favour of the plaintiff.
13) Point No.2:- This point is with respect to readiness and willingness of the plaintiff to performance of part of the contract. Readiness and willingness of the plaintiff to performance of part of the contract is required to be considered in a suit for specific performance of the contract. Though discretionary power to not to grant a specific performance of the contract is taken by 2018 17 O.S.No.4340 of 2023 amendment, it is necessary to consider whether plaintiff was ready and willing to perform her part of the contract. "Ready" refers to the practical ability to fulfill the contract's terms (like having the funds available), while "willing" refers to the mental state of actively wanting to fulfill the contract, meaning the individual is not just capable but also intends to perform their part; The plaintiff has clearly stated that she was ready and willing to perform her part of the contract and she had financial capacity to pay the remaining balance consideration amount as agreed in Ex.P.1. The plaintiff has also got issued legal notice calling upon the defendant to execute the sale deed which show her willingness to get the sale deed executed by paying remaining sale consideration amount. Therefore, in my considered view, looking into the conduct of the plaintiff i.e., issuing legal notice, shows the ready and willingness of plaintiff to perform 18 O.S.No.4340 of 2023 her part of the contract and shows that plaintiff has got intention to abide by the obligations casted upon her under Agreement of sale dated 16.09.2020. The defendant is at fault as she has not executed registered Sale Deed in terms of Agreement of sale dated 16.09.2020 executed by her father. Therefore, considering the conduct of the parties, in my considered opinion plaintiff was ready and willing to perform her part of the contract. Accordingly, this point is answered in the Affi rmative.
14) Point No.3: - This paint framed with respect to limitation. Article 54 of Limitation Act deals with the limitation governing suit for specific performance of the contract. Article 54 of the Limitation Act, 1963 states that the limitation period 19 O.S.No.4340 of 2023 for filing a suit for specific performance is three years:
Art.54 is divided in to two part-
If a date is fixed for performance: The limitation period begins from the date fixed for performance If no date is fixed for performance: The limitation period begins from the date the plaintiff receives notice that performance has been refused
15) In the present case no specific calendar date is fixed for performance of contract and as per Article 54 of Limitation Act limitation to enforce the specific performance of the contract is three years and limitation starts when there is no specific date is specified from the date of knowledge of the plaintiff that defendant has refused to execute the Sale Deed.
The plaintiff requested the defendant who is the legal heir of the executant of the document, has refused to execute the Sale Deed, soon after when defendant refused to receive the legal notice. Therefore, the suit 20 O.S.No.4340 of 2023 filed by the plaintiff is within the period of limitation as prescribed under provisions of Limitation Act. Accordingly, point No.3 is answered in favour of the plaintiff holding that suit is within the period of limitation.
16) Point No.4 :- This point is framed with respect to entitlement of reliefs claim. The material questions, which are required to be gone into for grant of the relief of specific performance, are :
1. Whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property;
2. Whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract;
3. Whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;
4. Whether it will be equitable to grant the relief of specific performance to the plaintiff against the 21 O.S.No.4340 of 2023 defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and lastly,
5. Whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.
17) That, plaintiff has sought for relief of specific performance of the contract to enforce Agreement of sale dated 16.09.2020. While answering Point No.1 to 3 I have concluded that there is valid contract between plaintiff & father of defendant to sell the suit 'B' & 'C' property. I have also concluded plaintiff has paid part consideration amount of ₹.16,00,000/- and she is ready & willing to perform his part of the contract. The defendant has not appeared & adduced any evidence to show that if specific performance of contract is granted then it will cause any kind of hardship to the 22 O.S.No.4340 of 2023 defendant, if so how and in what manner and the extent if such relief is eventually granted to the plaintiff.
18) The next point for consideration is when plaintiff has proved execution of agreement of sale, whether court has got discretion to refuse specific performance & grant alternative relief of earnest money. By way of the Specific Relief (Amendment) Act, 2018, Section 20 of the Act has been substituted, thereby rendering the relief of specific performance to be a statutory remedy, instead of a discretionary remedy. Previously, the unamended provision granted the courts, the discretion to deny the relief of specific performance, on the basis of judicially developed exceptions, even where it would otherwise be lawful to direct specific performance. Now, such statutorily created exceptions have been excluded. 2018 Amendment to Specific Relief Act has eliminated the discretion of the courts in cases involving specific performance of contracts and grants a right to an aggrieved party to seek specific 23 O.S.No.4340 of 2023 performance of a contract in certain cases, subject to the provisions contained in Sections 11(2), 14 and 16 of the Act. These Sections deal with 'Cases in which specific performance of contracts connected with trusts being enforceable', 'contracts which cannot be specifically enforced' and 'personal bars to relief,' respectively.
19) Reference may also can be made to the decision of Hon'ble Apex Court in Sughar Singh vs. Hari Singh (Dead) through LRs and Ors., A.I.R. 2021 SC 5581 . In the said case, the question as to applicability of the unsubstituted provision of Section 20 of Specific Relief Act on transactions entered into prior to the date on which the Amendment Act of 2018, was kept open. However, Hon'ble Apex Court held that the provisions subsequently substituted, may act as a guide to Courts in exercising discretion in matters dating prior to the substitution, even though such provisions may not apply retrospectively. The 24 O.S.No.4340 of 2023 relevant observations of Hon'ble Apex Court have been extracted as under:
"10. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant/executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant - executant of the agreement to sell, while exercising the discretion judiciously. 36 For the aforesaid, even amendment to the Specific Relief Act, 1963 by which section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the 25 O.S.No.4340 of 2023 discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, as observed hereinabove, the same can be a guide."
20) In B. Santoshamma vs. D. Sarala and Anr., (2020) 19 SCC 80 Hon'ble Supreme Court, while examining the amendment made to Section 10 of the Act observed that after the amendment to Section 10, the words "specific performance of any contract may, in the discretion of the Court, be enforced" have been substituted with the words "specific performance of a contract shall be enforced subject to the provisions contained in sub-section (2) of Section 11, Section 14 and Section 16". It was concluded that although the relief of specific performance of a contract is no longer discretionary, after the amendment, the same would 26 O.S.No.4340 of 2023 still be subject to Section 11, Section 14 and Section 16 of the Specific Relief Act.
21) Applying the law discussed above to the facts of the present dispute, I am of the view that in the absence of discretionary power under Section 20 to deny the relief of specific performance, the plaintiff is entitled to claim specific performance of agreement of sale. The position of law, even following the amendment of 2018 remains that the provisions of Section 16 of the Specific Relief Act have to be mandatorily complied with by the party seeking the relief of specific performance. The relief of specific performance cannot be denied in favour of a party who has performed his obligations under the contract & also ready & willing to perform his part of contract. 27 O.S.No.4340 of 2023
22) Under Agreement of sale property was agreed to be sold for a consideration amount of ₹.35,00,000/- and an amount of ₹.16,00,000/- was paid by plaintiff. I have also concluded while answering point No.2 that plaintiff was ready and willing to perform her part of the contract. Plaintiff has clearly stated that she is ready to pay remaining consideration amount i.e., ₹.19,00,000/- to the defendant who is the legal heir of the executant of Ex.P.1- Agreement of sale. As discussed above, Agreement of sale can be enforced against the legal heir of executant and defendant being legal heir of V. Srinivas is liable to execute the sale deed as agreed by her father. The plaintiff is having financial capacity to pay the balance consideration amount and as she was ready and willing to perform her part of the contract, in my considered view, specific performance of the contract can be ordered. As discussed above though, earlier the relief 28 O.S.No.4340 of 2023 of specific performance was discretionary, in view of amendment, the discretionary powers are taken away and only when defendant is able to establish that the Agreement is void under the provisions of Contract Act, then only the court can refused to grant specific performance of the contract. In this case, there is no evidence available to show that Agreement of sale dated 16.09.2020 is against the provisions of Contract Act and cannot be enforced under provisions of Specific Relief Act. Therefore, in my considered view the plaintiff has made out case to grant the relief of specific performance of the contract.
23) The plaintiff has also sought for order of perpetual injunction restraining the defendant from alienating or encumbering suit 'C' schedule property i.e., Flat No.104. If this court grants decree and defendant alienates the property then the rights of the 29 O.S.No.4340 of 2023 plaintiff will be affected. Of course, defendant got exercise right of ownership that includes right to alienate the property. But once an Agreement of sale in favour of third party and consideration amount received, then his right can be restricted by way of perpetual injunction not to alienate the property till execution of registered Sale Deed in favour of the plaintiff. Therefore, in my considered view plaintiff is entitled for the relief claimed. Accordingly, this point is answered in favour of the plaintiff.
24) Point No.5 : In view of the discussion and conclusion arrived at points No.1 to 4, the suit of the plaintiff is liable to be decreed with cost. Hence I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby decreed with cost.30 O.S.No.4340 of 2023
It is ordered and decreed that the defendant is liable to execute registered sale deed in favour of plaintiff by receiving balance consideration amount of ₹.19,00,000/- as per the terms and conditions mentioned in Agreement of sale dated 16.09.2020.
It is further ordered and decreed that defendant shall execute the Sale Deed within the period of 6 months from the date of judgment failing which plaintiff can get sale deed executed through the process of the court.
It is further ordered and decreed that perpetual injunction is issued against defendant restraining her from alienating or encumbering suit 'B' and 'C' schedule properties till she executes regular Sale Deed in favour of plaintiff.
Draw decree accordingly.
(Dictated to the Stenographer Grade-III, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 12 th day of March, 2025.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru 31 O.S.No.4340 of 2023 ANNEXURE I. List of witnesses examined on behalf of plaintiff:-
P.W.1 M.P. Munirathnamma
P.W.2 G. Ramachandra
P.W.3 Raghavendra C
II. List of witnesses examined on behalf of
defendant:-
-NIL-
III. List of documents exhibited on behalf of plaintiff:-
Ex.P.1 Flat sale Agreement dated
16.09.2020
Ex.P.2 Certified copy of Sale Deed dated
20.02.2007
Ex.P.3 Release deed dated 16.07.2011
Ex.P.4 Release deed dated 23.06.2022
Ex.P.5 RPAD
Ex.P.6 Postal cover
Ex.P.7 Form-B property register extract
IV. List of documents exhibited on behalf of
defendants:
-NIL-
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge, Bengaluru 32 O.S.No.4340 of 2023