- 1 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 341 OF 2013 (SP) BETWEEN: MRS. SHAHNAZ BEGUM W/O SHABBIR AHMED AGED ABOUT 65 YEARS R/O NO.226, 6TH MAIN ROAD MINAHAJ NAGAR J P NAGAR POST BANGALORE-78 …APPELLANT (BY SRI. PURUSHOTHAM G., ADVOCATE FOR SRI. RAMESH M.N., ADVOCATE) AND: V. LIYAKATH ALI S/O ABDUL FAFTAR AGED ABOUT 60 YEARS R/O NO.1, B N 18TH STREET CHANDNI CHOWK ROAD CROSS, SHIVAJINAGAR BANGALORE-560001 …RESPONDENT (BY SRI. M.D. RAGHUNATH, ADVOCATE FOR SRI. A.N. PATEL, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 16.11.2012 PASSED IN R.A.NO.145/2011 ON THE FILE OF PRESIDING OFFICER, FAST Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 TRACK COURT-III, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 2.12.2010 PASSED IN OS.NO.380/2006 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular second appeal is filed by the appellant challenging the judgment and decree dated 16.11.2012, passed in R.A.No.145/2011 by the Fast Track Court-III, Bangalore Rural District, Bangalore, and the judgment and decree dated 02.12.2010 passed in O.S.No.380/2006 by the learned II Additional Civil Judge (Sr.Dn.) Bangalore Rural District, Bangalore. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff, and the respondent was the defendant. - 3 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for specific performance of a contract. It is the case of the plaintiff that the defendant is the absolute owner of the suit schedule property. The plaintiff is a pardanashin lady, and she agreed to purchase the suit schedule property for a consideration of Rs.9,26,000/- and accordingly, the plaintiff paid a sum of Rs.5,00,000/- on 23.08.2003, and the defendant acknowledged receipt of part payment of consideration under the receipt dated 23.08.2003. It is contended that the defendant had received a balance sale consideration of Rs.3,00,000/- on 15.09.2003. The balance amount of Rs.1,26,000/- was to be paid to the defendant. In part performance of a contract, the defendant delivered the possession of the suit schedule property on 15.09.2003. The plaintiff was/is always ready and willing to perform her part of the contract. The plaintiff approached the defendant with a request to - 4 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 execute the registered sale deed by receiving the balance consideration, but the defendant refused to execute the registered sale deed. The plaintiff got issued a legal notice to the defendant calling upon the defendant to execute the registered sale deed. The defendant replied to the legal notice with the untenable grounds. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract. Accordingly, prays to decree the suit. 3.1. The defendant filed a written statement denying the execution of a sale agreement and agreeing to sell the suit schedule property in favour of the plaintiff for consideration of Rs.9,26,000/-. It is contended that the defendant borrowed a loan from the plaintiff and executed a receipt in favour of the plaintiff. The defendant has repaid the loan amount of Rs.8,00,000/- to the plaintiff. The alleged receipt cannot take the shape of an agreement of sale and it does not include the description of the property in Sy.No.45. The plaintiff is not in possession and - 5 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 enjoyment of the suit schedule property in part performance of a contract. There is no cause of action to file a suit. Hence, prays to dismiss the suit. 3.2. The trial Court, based on the pleadings of the parties, framed the issues and additional issues. 1) Whether the plaintiff proves that defendant has executed the agreement of sale agreeing to sell the suit property and received Rs.3,00,000/- as earnest money? 2) Whether the plaintiff proves that she was always ready and willing to perform her part of the contract? 3) Whether the plaintiff is entitled for relief sought? 4) What order or decree? Additional Issues: 1) Whether the plaintiff proves that the defendant agreed to sell the suit property for Rs.9,26,000/- orally? 3.3. The plaintiff, to prove her case, examined herself as PW.1, examined 4 witnesses as PWs.2 to 5 and - 6 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 marked 18 documents as Exs.P1 to P18. In rebuttal, the defendant examined himself as DW.1 and marked 23 documents as Exs.D1 to D23. The trial Court, after recording the evidence of the parties, hearing both sides and after assessing verbal and documentary evidence, answered issue No.1 partly in the affirmative and partly in the negative, additional issue No.1 in the negative, issue No.2 does not survive for consideration, issue No.3 in the negative and held that the plaintiff is entitled to an alternative relief of recovery of Rs.8,00,000/- together with interest @ 10% p.a. Issue No.4 as per the final order. The suit of the plaintiff was partly decreed with costs in respect of an alternative relief of recovery of money. It is ordered and directed the defendant to pay a sum of Rs.8,00,000/- to the plaintiff together with interest @ 10% p.a from the date of Ex.P1 untill the date of realization and the suit for specific performance of a contract was dismissed. - 7 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 3.4. The plaintiff, aggrieved by the dismissal of the suit for specific performance of contract, in O.S.No.380/2006, preferred an appeal in R.A.No.145/2011 on the file of Fast Track Court-III, Bangalore Rural District, Bangalore. 3.5. The first Appellate Court, on hearing the learned counsel for the parties, framed the following points for consideration. 1) Whether the plaintiff/appellant is entitled for the decree of specific performance of contract in pursuance of the Ex.P1 stamp receipt? 2) Whether the impugned judgment and decree calls for interference by this Court? 3) To what order? 3.6. The first Appellate Court, after reassessing the verbal and documentary evidence, answered point Nos.1 and 2 in the negative, point No.3 as per the final order. The appeal was dismissed and the judgment and decree passed by the trial Court was confirmed vide judgment - 8 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 dated 16.11.2012. The plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4. Heard the arguments of learned counsel Sri. Pursushotham G, for Sri. Ramesh M.N, the learned counsel for the plaintiff and learned counsel Sri. M.D. Raghunath for Sri. A.N.Patel, learned counsel for the defendant. 5. Learned counsel for the plaintiff submits that the defendant agreed to sell the suit schedule property for consideration of Rs.9,26,000/- and accordingly, as on the date of the execution of a sale agreement, the plaintiff paid a sum of Rs.5,00,000/- as advance sale consideration amount and subsequently, the plaintiff paid Rs.3,00,000/- to the defendant towards further sale consideration amount. He submits that the plaintiff has produced the document marked as Ex.P1, which discloses that the defendant offered to sell the suit property for consideration of Rs.9,26,000/-. Ex.P1 proves the - 9 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 execution of a sale agreement regarding the suit schedule property in favour of the plaintiff. Both courts below have not properly considered Ex.P1 and committed an error in dismissing the suit for specific performance of the contract. Hence, he submits that the impugned judgments passed by the courts below are arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal. 6. Per contra, learned counsel for the defendant submits that the transaction between the plaintiff and defendant is a loan transaction and not a sale transaction. The document produced by the plaintiff is a receipt and the plaintiff has not produced any records to establish that the transaction between the plaintiff and the defendant constitute a sale transaction. Ex.P1 is not a sale agreement. Both the courts below have rightly appreciated the evidence on record and have come to a conclusion that the transaction between the plaintiff and defendant is a loan transaction and not a sale transaction. Hence, on these grounds, prays to dismiss the appeal. - 10 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 7. Learned counsel for the defendant submits that under the decree passed by the trial Court, the defendant has deposited the decreetal amount with interest in 2011. 8. This Court vide order dated 22.07.2014, admitted the appeal to consider the following substantial questions of law. 1) Whether the finding of the trial Court that Ex.P1 is only a receipt acknowledging money and not an agreement of sale is sustainable when in law there is no prescription of an agreement, which could be either in oral or in writing? 2) Whether the trial Court is justified in denying the relief of specific performance on the ground that Ex.P1 is only a receipt and not an agreement of sale? 3) Was not the appellate Court required to consider the evidence in its totality to decide whether the parties were hit by contract of sale of the property in view of clear evidence from the plaintiff? - 11 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 9. Reg. Substantial question of law Nos.1 to 3: Substantial questions of law Nos.1 to 3 are interlinked, and are taken together for common discussion, to avoid the repetition of facts. It is not in dispute that the defendant is the absolute owner of the suit schedule property. It is the case of the plaintiff that the defendant agreed to sell the suit schedule property for consideration of Rs.9.26,000/- and accordingly, the plaintiff paid a sum of Rs.5,00,000/- towards the advance sale consideration amount and agreed to pay the balance sale consideration amount at the time of registration of sale deed. The plaintiff had paid another sum of Rs.3,00,000/-, and the plaintiff is liable to pay Rs.1,26,000/- towards the balance sale consideration amount. The defendant executed the receipt of part payment of consideration on 23.08.2003 in the presence of witnesses. 10. To prove the execution of a sale agreement, the plaintiff placed reliance on the receipt marked as Ex.P1. I - 12 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 have perused the recital of Ex.P1, which discloses that the defendant is the sole and absolute owner of the property bearing Sy.No.45 situated at Belahalli village, Yelahanka, Bangalore North Taluk, and the defendant offered to sell the suit schedule property for consideration of Rs.9,26,000/- and accordingly, the plaintiff paid Rs.5,00,000/-. The plaintiff has also produced documents. Ex.P2 and 3 are the postal covers. Ex.P4 is the copy of the legal notice dated 23.08.2005 issued by the plaintiff to the defendant, calling upon the defendant to receive the balance sale consideration amount and execute the registered sale deed and Ex.P5 is the correction letter dated 03.09.2005, as there was a typographical mistake in the 16th line of the Ex.P4, which was typed as 22.08.2003 instead of 23.08.2005, Exs.P6 and 7 are the postal covers. Ex.P8 is another copy of the legal notice dated 25.10.2005; Ex.P9 is the under certificate of posting, and Ex.P10 is the reply issued to the legal notice dated 19.12.2005. Ex.P11 is the copy of the legal notice dated - 13 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 05.12.2005. Ex.P12 is the receipt for having paid Rs.10,000/- on 10.10.2003 and Ex.P13 is the receipt for having paid Rs10,000/- on 20.12.2003, Ex.P14 is a receipt for having paid Rs.15,000/- on 08.11.2003, Ex.P15 is the receipt for having paid Rs.10,000/- on 10.12.2003, Ex.P16 are photographs, Ex.P16(a) to 18(a) are the negatives. 11. On the other hand, the plaintiff also examined attesting witnesses to Ex.P1. The defendant examined himself as DW.1 and deposed that the transaction between the plaintiff and defendant was a loan transaction and not a sale transaction, and the defendant never agreed to sell the suit schedule property in favour of the plaintiff, and the defendant had borrowed a sum of Rs.8,00,000/- from the plaintiff and the defendant had repaid the said loan amount. Ex.P1 is concocted by the plaintiff to sue his illegal claim, and to prove the defence, the defendant had produced the document Ex.D1 is the original registered sale deed, which discloses that the defendant had purchased the said suit schedule property from one Bakery - 14 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 Syed Ameer on 02.01.1993 and Exs.D2 to 10 are the RTC extracts stands in the name of the defendant, Exs.D11 to 20 are tax paid receipts, Ex.D21 is the patta receipt, Exs.D22 and 23 are the photographs. 12. From the perusal of the entire evidence on record, the plaintiff has contended that the defendant agreed to sell the suit schedule property and produced Ex.P1. From the perusal of Ex.P1, it is a receipt and the plaintiff, to substantiate that a sale agreement was executed by the defendant in favour of the plaintiff, the plaintiff has not produced any documents. Further, Ex.P1 does not disclose when the sale agreement was executed between the plaintiff and defendant. The defendant had taken a defence that the transaction between the plaintiff and the defendant was a loan transaction, not a sale transaction. The document produced by the plaintiff marked as Ex.P1 is vague and does not disclose when the sale agreement took place. Merely, based on the said receipt, this Court cannot hold that Ex.P1 is the agreement - 15 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 of sale. The plaintiff has failed to prove that the defendant agreed to sell the suit schedule property for consideration of Rs.9,26,000/- and paid Rs.5,00,000/- as an advance sale consideration amount. Both courts below, considering Ex.P1, have rightly held that Ex.P1 is not a sale agreement and the transaction between the plaintiff and the defendant is a loan transaction and rightly passed the impugned judgments. 13. Both courts below have entirely considered the evidence of the witnesses and passed the impugned judgments. Further, it is not the case of the plaintiff that the agreement between the plaintiff and defendant is oral, and there is no specific pleading or record to the date of the alleged sale transaction entered into between the plaintiff and defendant. Ex.P1 is the only receipt and not an agreement of sale. In view of the above discussion, I answer the substantial questions of law Nos.1 and 2 in the affirmative. Substantial question of law No.3 in the negative. - 16 - HC-KAR NC: 2025:KHC:21605 RSA No. 341 of 2013 14. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the courts below, are hereby confirmed. iii. No order as to the costs. iv. However, liberty is reserved to the plaintiff to withdraw the amount deposited by the defendant before the trial Court. In view of the dismissal of the appeal, I.A.No.1/2013 does not survive for consideration and accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS