Karnataka High Court
Deepak Rajani S/O Ramachandra Rajani vs K B Pampapathi Since Dead By His Lrs on 23 May, 2011
Equivalent citations: 2011 AIR CC 3282 (KAR), 2011 (4) AIR KANT HCR 445, (2011) 6 KANT LJ 98, (2012) 1 KCCR 428
Bench: V.G.Sabhahit, B.Manohar
JUDGMENT This appeal is filed by {he O.S,N:::.8621/1995 on the file 0f:Xf Bangaiere being aggrieved by the juéigrrrent and..deeree'Vdér':ed' 3}~10~2003 insofar as disrnis:_s:{ét1..ebof" "fine 'r--e1:i"e__f ddfdeffhspeeifiedd performance.
2, The materia} ra§%i{s_A5r up to this appeal with reference before the trial Ccsurt ' K V filed by the appellant herein -1:Vre,e_pQn_dents--defendants~1 to 3. Defenddnteé2V&' of defendant No.1 and they Aeeonstiffiteiv jointffamilys Defendant N01 was the ' V' "V-kar"d:1:a iigne j0inftVV'f;éirniI3,I. The joint family own premises situated at 4"" cross, Shankarapurarn, Be;11§ezi0re.§5}.--f:tnierefufiy described in the schedule. The joint "V.,fami1y*~_in1curred a lean in the State Bank; of India, '.VS:hani§e.rapurarn Branch and aise raised a lean {rein ene Sri 44:» H L Sridhara Mtnihy as the joint fannly hae need of some funds fer their legal H€C:€SSiij;'f :"aa;:1_g,.= V' benefit. Hence, the defendants offereedeto s§e:1','I{11+;§:é»4sé1;.ga.un property and the plaintiff offered agreement of sate was exeeudtedyign that behal_f.":a1so "
averred that defendant No.1 haduVe'nte're'd into: an agreement of sale with one Sn and received an advance of said amount, d€'f€Y1d3mS in favour of registered document dated M.S.PaIani Chamy agreed to give up 'haze righid interest acquired under the agreement b3; I"»eeei\;ing' back the advance amount paid by d the. instance of the said M.S.Palani Chamy, A .vhetf'e:§n' entered into an agreement of sale with the plan-2.tiff __>o'n 14994 agreeing to sell the schedule favour ef the plaintiff free of all encumbrances, d a fittaluable Consideration at the rate of RS650/~ per sq,ft ihé Esta} amount werke nut to Rs'2€}§28,€3€}G/~. The ~:5:-
defendants received frrzem {he piaintiff in ad}, .2: sun: sf Rs.9955,OOO/~ as advance an various dates, nut defendants have received a surn of Rs.3,I(),00O_/ _ Pay Order issued by the Indian Bank, favour of defendant}, 3. sum of means of a cheque bearingV.N,<;s.85OE3{)'E3'* dravarrnndindizdadtrz Bank, Ulsoor Branch and a paid to M.S.PaIani Charny for on .rf1e.defendants in full and final settlement of eadgreemenr dated 444992 white '¢::§;;1;:e11ii§:g means of Pay Order Ulsoor Branch, a sum &AffasV.:'.'paid._"35jrVflémeans of a Pay Order issued India, Rajajinagar Industrial Es'L'a'Le_Bran€:h bearing'-._N0--."528943 dated 9-114994 and a paid in Cash, in 2111, total amount of '~-. iivas paid rid the first defendant towards part cd2:eiderartir;;r:'j_dfvRs.20,28,0<T}O/~, The defendants agreed in '.Vexeeu'te. Vihevsaie deed and register the same within two :::ndn:h_e from ihe date of the agreement Since the defendants committed breach of the contract thevVpl,afnt;tiff issued a notice claiming that he is ready perform his part of the contract and that he V the registered sale deed as per u K394. Since the said request. was noAtl'heeded..".to.t"sluttlifizaelWL ~:£3:~ filed for the following reliefs:
;'n1an--ner' wl1a--t,_S'oeVer,"' to "Wherefore, the -.plai'htiff pralys" that this Hon'ble"'{7ot1rt«.rn:Iay:V bepleasoed to pass a judgment and decreelvfoh specific performance-ref . the 'contract "dated 10-l lw l994Ledirect1ng: the 'defen.dantts or anybody under the defendants in any l V» l j _ execute the registered sale'=deed'linfrespect of the suit ' --Sctj;edutfe"~ property " pursuance of the agreernent dated _l_'0~11--l994 and deliver ' the x%ac'ant=.Vplos_session of the same to the " to plaintiff "receive the balance sale 'impossible, ' o eonsiderationt _ _ Alternatively, the plaintiff praysthat in the event if this Hon'ble Court V\7€I'€'A"'iQV___Q_QIn€ to the conclusion that the "specific performance of the contract is this Horfble court may be fpleasced to direct the defendants to refund V ' f'fthe:= V advance amount of Rs.9,55,000/~ . together with interest at 24% 'pa. and also "damages of Rs.l,O0,000/~ and there may be a decree for the costs of the suit."
' ft"?
-:7:- $3, The suit was ressistied by the first defehdaiéjttwhohttis the father of defendants-2 8: 3. However? he avermehts made in the piatnt that»e:,=it stEhedi1'ie'pfop'ertLj;; was the joint family property and he joint family and the averment__v'thzat the p1a.i_ht:'ft"eftsehtttged 'V L' the debt of the defendetnts aliliit:Vhi?;dE_ Va1;tt>uS:_pEt};ttn€r1tS is denied It was also deht.ed_that had agreed to sell the suit.sehed}.;}eviufifofietty 'textvéietljetonsideration of Rs.2o,28,ooQ/3_} Rs.9,55,000/~ as advance 011:: the plaiht. Further, the '..--'§:1é1'veerr1ent, defendants have agreed "€te"ed within sixty days from the date _of,agreetneh't..2tftef. ohtaining clearance from the Income .. 4. disehefgihg the loan in favour of State Bank of ttefefttiahts did not perform their part of the eet3tfaetv_afei--.tite11ied. It is only the first defendant who has 'V._»'receiverih;the said amount without the consent of other "..:friefe12.tiahte. The first defendant had informed the plaintiff ~ the is going te set} the share of first éefehotaht, plaintiff V ;
e 'V ._ iy «:'§:~ did not came feiward to take the seheauie prtigaerty. Defendants~2 <3: 3 filed e.s.Ne.9e49/2096 befo:'e.«~the.':{}ei;ft fer partition and separate possession ef prepe'rtties--.t_& including the schedule property ..vCtec1a1'e:\"
agreement of saie dated 1O~1_}.--19'EV)?-i»__ not hgnciing them. It is also averted that thefe,is no'~-<:ause'_=ot"1aetien to file the suit and the suitis 1iabiAe«--t~'t'be di.smissed...AA
4. The defendants?" statement averring that as.Ae"n.j_thVe__eiate of execution of the agreement made in the plaint th'e'"karta of the family and he agreed for the benefit of estate and legal necestsityh. It t&ras'f1i1*i;hier averted that defendants~2 8: 3 «_ havefileet' Q.S.Ne';~9Q_49f2008 seeking for a declaration that '»ag1'eVeinen_t"n__f sale which is sought to he executed on executed on behalf of defendants-2 8: 3 andhthe ..sfaie?fagreernent is not binding upon dlefendantsfl & and the question of enforcing of the said eentraet would _ étetarise.
5, Having regard te the pleadings, were framed;
(1) Vxfhether the p1ai:r.itiftf"e defendant on behalft'-t_ of hfmisveif 'gaizd defendants-2 8»: fientered it1t0i'VagrevemVerit of a ' sale dated i0~i=igt«994 agreeing it; Sell the suit schedule pr_e_per_ty.._Vfor the_eensideratiori amount ef..Rs.2iO',28,tDDO}'A;? V {2} 'Whether the Wpi1ai'nti_ff-. fpreves that the defendahtahave'eomrhitted the breach of the .a§--§i'€'-5"m€7i_'¢ 0fSai€:.?"*C'--.. ' ' _..{8)"'.7.Vhett;ier the ;'p1ai;1"t1£t'preVes that he was every ' _ ready toflperform his part of the "'v.,%_c'ori-t;raet?_" ' it i _ ..p__lairitiff is entitled to the relief of t _ Specific "'p_éFfQI;_II1anC€ of the agreement of . sa}e?'"g" ' {:53} f\7Vhetihei'v. e1'éiendar1ts~2 8: 3 proves that it is riot binding upon their share as they have not agree"ci'"tC sell their shares'?
'E1ۤ}'--.*y&7hat decree or order'?
5. Liehatf of the plaintiff, piaintiff examined himseif ' has mine get marked the documents Extili - agreement E:X.§'e2 ~ eepy of the legai rtetiee and EZX,P»~3 -
-«: E0 :-
unserveei Cover. During the pendeney of thepV..atiit;€"fi'rs't'_ defendant died and his wife has been brought LR. On behalf of the defendants, wife' «at was examined ae D.W.l and defen§ant".A_ANe.2 as D.W.2. _
7.? The trial Ceurtnafter the" eentenations cf learned Counsel appearingtfortthpe' "and appreciating the oral and doenmentary' held that the plaintiff has behalf of himself and defendaEr;te#f)¥V§;p an agreement of sale dated sellvfthe suit schedule property for a - and the defendants have eemrnitted.fbreaehf-ofthe agreement of sale. However, 'i if the trial ?C:<>u"rt& ansniferett issue N053 to 5 in the negative by 'vthe:p_'}.ainttff has failed to prove that he was ever ready'Vland..nfil.iing to perform his part of the contract and f"-.,_'Vplaintiff isl'1n<:~t entitled to the relief cf specific performance of " jaugtieement ef sale and that defendants-2 8: 3 have failed ..__'":te preve that agreement ef sate is not binding on them. The »:il:--
trial Court granted the alternative prayer ef the plaintiff by directing the defendants to pay a sum of Rs.9,55tQ€)C3»f€t.tQ the plaintiff with interest at 6% pa, from the date§'_ef' _ till the date of realization and the defendantsidiiwere algal' directed to pay a sum of Rs.l l:§iL{h:...1°,tA)::r .' damages and dismissed the suit_ of the plaintiffvfiimr épeififii: performance. Being aggrteVedlV'Vdhy_R'the said Ijudgrnent and decree, plaintiff has filedjtlfils
8. The learned erfiinselii the appellant submitted Ifightty held that the plaintiff'efithegagreement of sale dated lO~1l--lQ9él had agreed to sell the property and defendants--2 <3: 3 and the samegisl binding defendants-2 8: 3, erred in holding that lvgijlatntiff "failed to prove that he was ever ready and htvjllritggldhis part of the centraet and the plaintiff is not""enti.tled,A:*'fer the relief of specific performance. The Vl'Eearned'v.eeunsel further submitted that time is net the _ e.Ssenee of the eontraet since the transaction was in respect ~:12:~ of immevable property and it is Clearly averreci in and the exfidenee ef RWC} that the plaintiff were:"et%e.rVV:ieee;tti§%"e V' and wiliirrg to perform his part of tile' e--0ntri aetvVe;rr$;i' re.
the reply notice, nothing has been""«stzit_e<i'tVorr--'Q'e11e1ifu defendants that plaintiff had "ea_paeity VtoVpe{fig_tEie"'b3.1alnce * L' ameunt and having regard "etV};iefendant~1 who has committed u plaintiff has proved that he yea-sv'.ready' his part of the contract sf:-t;ij:.ter:':éf)'ecifie performance eught * V' t Ii} st1;eA\t;§t);r<t..V-Qt"Vtrislieentetitions, he has relied upon number Supreme Court and this Court,' which weuld be referred to wherever they are found to '~ ._be tr; the 3;'ppeII.ant.
" . h flearned counsel appearing for the respendents subrriiiteci that the piaintiff himself has seught for 'u_'e~aIie1'nna¥:i§L}e prayer for refund ef the advance amount of . ~ with damages of R3,} iakh which has been 5:
s' I;
g M _, xx 1:. Having regard {<3 the above said eontenhlens, fefiawing points arise for our de1:;em1ination in this {1} Whether the finding Q_fi.h,e' triza1.VCe'L§:f§»t:hai_' plaintiff has failed prgwiefivthaith'h"e'---was-eevegf .« ready and \vi11i?r""§ to fiéfferm 0ft'{hve V' contract is justifie€1"~~Qr eafie,fe>1iqZri:effe'feI1ee in '' this appeal? V _ __ _ (2) Whether fin-eiihigh "sfiziial Coup: that the plaintiff is ncéhtl e'f1'Li;t]1ed_.~tp"fhefelief of specific .£3Cir:t'o.1fma;t1AVee:' ' A';}{:i3--S_tlfi€ti.V' or CEIHS for ".i:nte_i'feren'Cef? _ """ judgfixeht and decree passed by 1 i11"whic:h the interest awarded . at Rs.9,55,000/~ and which is " pVrde1:'edA.:0Vhe paid from the date of suit to the defi:ev:>.f..rea1ization is liable ta be set aside?
T "'3Je--.2:;<}fs;\x:er the aheve points as fesfiows:
~: £6:~ aggrieved by the finding of the triaf Cour: holding plaintiff was not ready and Willizlg to perform * centract and the plaintiff is net enf.i§l'ed of specific performance.
Points £138: 121:
13. The learned for the appellant has taken us through the contents of EXS.P-1 Of P.W.2. On reappreciatihg in order to answer the points Vflthat P.W.1 who is the p1aintiffv""has._ ai/erre'r'i'e«.iVn-rhe p1aint that he was ready and willing to r3e'::f0rm of the contract. He has also _stat:iC'L:.i1f1__ hie eVi<:'iene::e...in examir1ation»in~Chief that he was ready and wi}1ir*:g_ to perform his part ef the contract and also has notice as per EX.P~2 wherein he has . stateki th-af he was ready and willing to perform his part of eganiraet. Apart from making the said averrnent: in the _ p"1ain:"and statement in the deposition. no material whatever ~: 17:-
is produced by the plaintiff to substantiate his eonte_nti..on that he had the Capacity to pay the balance arnou;'rt:«aI}ti__tt'ha:t he was ready and willing to perform his paI't.OfV_A't,h:e' ¢.e'ntraret*<t b by paying balance Consideration as e'onsideratton7 amount agreed was Rs.2O,28,_0QO/V§fh'ereas;..'thAe' advan"ee'V'~ of Rs.9,55,000/~ has been pai«:iX. has <itenie«;ta snggestion V in the cross examination that not.readftahdhvtnrilling to perform his part of the the defehdant--1 informed him he the sale deed in respect of respect of share of defendaintsvr?:A&Tt3:»;;:tveasvnotfiready and willing to get the salefileecl hehalf. It is well settled that in View ofthe 4JSection 16(1)(e) of the Specific Reiiefaaett 1963 ~ burden of proving that the plaintiff was to perform his part of the eontraet is upon is one of the requisite for granting the relief of 'specific performance of the contract nameiy, :V.h'agre_ement of sale dated IO-i1~1994 in the present case. 'fiat Court has proceeded on the basis that though the '3 '7» 5' ,=\ «: £8:-«-
defehdarmi was required te execute the u months from the date of exeetzttiongphe ':e::eet:te<:£p'_ .' sale deed and therefore due notice - EE:a;PV~2 hasWbeeVn'ieei'.ue:i on i3~4~1995 calling upon the f1--retV--rdefehd--ar1t=.te_: the sale deed. Further, the hie' eviderlce that he had also agreed to pttrehase helonged to the brother of first .:tiefend;aht: and in that Connection, sate 4de5je'g:_1~:_WaS' notpregistered in his favour.
14. 'I'here_,.is force .the._eon*te11tion cf the appellant that time' Vteseefice ofttvebhtract in respect of the immovable 'p.ropert3§;"ffhglreatfned counsel appearing for the appellant relied 'en thettieeistons of the Supreme Court in the case» s;"tr.R.M'UpLtg§r{.(pEAJ3) BY HIS L.Rs & OTHERS Vs AV__P.AJA_BU_' (Mrs)(DE3AD] BY L.Rs & OTHERS ({1_995}%;"-vS'ee BALASAHEB DAYANDEO NAIK {DEAD} 'rHr<<>__Uea~ 1,; AND OTHERS vs APPASAHEB DATTATRAYA ,v('{AfZ€)(:!8} 4 SCC 464} and SMTJNDIRA KAUR 8:
A 5i::»<IiHeRs vs SHRI SHEO LAL KAPOQR {AIR 1988 SC 1074} '""eiear§y ehews that time is not the essence of the eerztraet in E', V »:2C1:w period of iiinitaiion for enforcing agreement is share is not tenable and Section 21 0f the Lin¢ite{tinn'iA.£§&ct: ms' no appiieatien tn the Cases of i15anSp0e.iiion;' ,_The._e£her°« decisions relied upon by the iearne-:1 Counsel e:_ppea'§ing§«'far'~. the appellant is not heipfui to case en ehow V that the plaintiff has Vg::'1'r)V.\/'ed e.::haei'w;;».s exiefy reaciy and wiiiing to perform his pariicifthe.;§igfeeineVni;.'"
16. It is Clear in the,preserityease, what was stated in the i..h'eht':i'<:fe:ndants were called upon to of the plaintiff after nfieceiesaijiuieeeiuirernents under the law for regieireiti--on within seven days from the date Q.f_Vreceipt'V_Vef .i:.i'ieA'i1oVfiee, failing which, plaintiff wiii be "V*ve0ne£fai:neci«%;o fi1e'V"a""'sVuii for specific performance of the Lagreeineiafeandv 'obtain 21 d€CI.€€s There is in) merit in the fearned Counsel appearing for the appeiiani hehihai fegard to the fact ihat avernient in ihe piaini and VA evidence of FEW} that plaintiff was reatiy and Willing in peffeiin his part ef the eoniraei and the capacity cf {he i»; : 3% piainttff to pay the balance .»:trnottn.t has not been disp:ti'treed.
The averrnent made in the plain': that plaintiff xvas~«~retec§§_ wilting to perform his part of the contract whieh""tsu.s1:oke:: tot V by P.W.1, which is the self servingetettetttentf, haskr:otVVheenV'V« substantiated by producing any mét;_eria1 on reeo'r«;§*. learned counsel appearing ' the hhhftirther submitted that the plaintiff neeecttproveh thatvghe was having cash or depositeti the Court to Show his readineee and his part of the contract. Vhemhad capacity to pay the balance i"t----i<s. not necessary for him to produee7,th'e' Court. If the evidence prove that he had' pguapgtctty 'to'.p'a.}'}"_.'the balance consideration and he was and xw2'.11:ivng to perform his part of the contract, non,;iepo:étt--'of.%rnount will be of no merit in denying the r'e1ief_of xspeeifieihperformance. However, in the present case, V V _ apartfro-rn. the self serving statement of P.W.t, there is no _rne.tte_n'aI'tarhatever produced by the ptaintiff to substantiate seit" serving statement that he had the capacity to pay the ~: 22 :» balanee amount; of Rs.I2[?§3,000/~ and Self serving statement can never prove the averrnents made in thepiaint. The evidence of D.Ws.1 and 2 would clearly _ have stated in their exan1inat1'0n~in-chief thvatthe fpiai.ntif!fu was not ready and willing to perforfn hie, --eeof'4the ':e:::§a.:;t .« and he had no capacity to p,:3_y_ thetthatance ecohpsihcieratjotn. Therefore, finding of the trial has failed to prove that he re:£<§te_ tovhpetform his part of the contract is is held that plaintiff has and Willing to perform rehef of specific perf0rrr3anee"effthe aigfeetrtzetttt of _sale cannot be granted.
17. 'Fu7'rthef;'-- in' contents of EX.P~I would showithat paVrti'es_V ate eonternplating that if there is breach defendants, plaintiff would be entitled to Afe:foh_d¢1 amount and R3,}: lakh. Further, the gont"ents,__'of .E§:.P~1 itself Wouid Show that agreement was to ht""~._Ve:;nvene'v.tharketab1te title free from at} encumbrances and p:'a.d:'n_ét;ted1§,:-' iiefendantsfi <3: 3 have filed a suit against the ~: 23 :~ plaintiff and first defendant in OiS.Ncz. 9049/2396 eiaiming partition and separate possessien (if the suit sveheedtteie prnperty and defendants-2 & .3 were minors at__the'--t.iin:e': _ execution of the agreement of sale. reiief claimed in the suit includes an alternative 'pager. f defendants may he ordered to iffiftlfld of i. received by them along with 24¢/'b'.i)i}é1. the damages of Rs.i Iakh, thefahxove said circumstances and on flthe oral and documentary €fv'ii5,:é'gIi_i3€ triai Court, it is dear that that the plaintiff has failed Willing to perform his part of the tot" 10414994 and that the plaintiff is entit'}._eci~,to"~.-feiief of specific performance as '~ ._s0ught<.feif:in__the justifieti and the said finding of the V"_:tf'iVE,1V1"COuiTtV'dQ't3S..'£1Qi suffer from any error or illegality so as to ya (2) aceergiingiy, <:aii.fCi:'A intefferetiice in this appeai and we answer points {1} Point l\lo.§3§:
l8. The trail Caurt having held that plaintii'iiliis§llii:_ot entitled to relief of specific performance has or;i;§§iea'..';jei1i:i«;i'*« _ of Rs.9,55,0{}O/- with interest at 6% par suit till the date of realization. is .'f.oree"tiin_ Contention of learned Counsel ,appeaifirig for,the,appel;lant that the interest ought to havelvlhelei: awvardedifronlitthe date of payment of the adv'anee._the..date realization and not from the date of was paid much earlier to oi:=A.'theLla~uit"tael in the document which has 'Therefore we hold that plaintiffkktould irlltlerest at 6% pa. awarded by the trialvtioeurtl nayment of advance amount to the datekafl teali::atioln;~.--";l"he judgment of the trial Court i_Vawa._i:fding_lAV' Pal lal{i1vv--a.s~damages is justified having regard to thVel"e.oritVei"iil_s. }3ZX.P~l. Apart from making the said mCdifieation'ij*:_al:3out entitlement of the plaintiff to interest j from thellldiate of payment (if the advance amount to the date n:"eia.l&i2:atlioni the judgment and decree in all other respects, ' ' e0n'firfne_d, ~: 25 :~ 13 entitled to be C(}1'}fiI"I11€ii Aecordthgty. peint"
N0,{3} and pass the following:
The judgment and deeree"Vpet::2sxed by the triei Ceurt dated 31~I0«2003 in awardihg thterest at 6% pa. on the amount 0r'<:tet1'"ed' ttetjhe from the date of suit till the it is ordered that the plaihttff "'h1'_ritere.$t at 6% :13. on the amount»0fevReL§?,'55:,:{)'30/'eh'whieh"ie-erdered to be paid, from the clate of }3'cA;ty'1".v"V!.€').V'1"E.VQf'.§h'(ft_'adV_i11"1C€ amount to the date of rea1izatidr:VV."Apart§1tQrhV'the"s'étid modification, the judgment and decree trial Court in all respects is 3:1]:
Feige Séf-ti