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2025 DAILYLAW 25471 (KAR)

SRI NAGARAJU @ S NAGARAJ v. SMT N SARASWATHAMMA

RSA/893/2016 · 2025-03-04

Ashok S Kinagi

body2025

Judgment text

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- 1 - NC: 2025:KHC:9142 RSA No. 893 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 893 OF 2016 (SP) BETWEEN: SRI NAGARAJU @ S NAGARAJ S/O SIDDAPPA AGED ABOUT 63 YEARS R/A K P DODDI VILLAGE KAILANCHA HOBLI RAMANAGARA TALUK DISTRICT RAMANAGARA-572 159 …APPELLANT (BY SRI. K.P. BHUVAN, ADVOCATE FOR SRI. RAJU S., ADVOCATE) AND: SMT N SARASWATHAMMA @ SARASWATHI W/O LATE SHIVARAM AGED ABOUT 43 YEARS R/AT K P DODDI VILLAGE KAILANCHA HOBLI RAMANAGARA TALUK AND DISTRICT RAMANAGARA-572 159 …RESPONDENT (BY SRI. M.G. RAVISHA, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.02.2016 PASSED IN RA.NO.71/2010 ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED Digitally signed by B VEENA KUMARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9142 RSA No. 893 of 2016 17.06.2010 PASSED IN OS.NO.95/2007 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, RAMANAGAR. THIS APPEAL, COMING ON FOR HEARING, 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 18.02.2016, passed in R.A.No.71/2010 by the learned III Additional District and Sessions Judge, Ramanagara. 2. For convenience, the parties are referred to, based on their ranking before the trial Court. The appellant was the defendant, and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit, against the defendant for the specific performance of a contract. It is the case of the plaintiff that the defendant is the owner of the suit schedule property. He had acquired the suit property - 3 - NC: 2025:KHC:9142 RSA No. 893 of 2016 under a partition deed dated 01.01.1998. The defendant agreed to sell the suit schedule property to the plaintiff, for consideration of Rs.1,71,000/-. The plaintiff paid Rs.25,000/- towards the advance sale consideration amount, and it was agreed that the balance sale consideration amount would be paid within 3 months from the date of execution of the sale agreement and executed a registered sale deed on 27.10.2005. It is contended that the plaintiff was ready and willing to perform her part of contract, but the defendant did not perform his part of contract. The plaintiff, to establish that she was/is always ready and willing to perform her part of the contract, issued a legal notice on 16.11.2006. The defendant replied to the legal notice, by claiming an additional amount to the sale consideration and did not perform his part of the contract, as per the sale agreement dated 27.10.2005. Hence, a cause of action arose for the plaintiff to file a suit for the specific performance of a contract. Accordingly, she prays to decree the suit. - 4 - NC: 2025:KHC:9142 RSA No. 893 of 2016 4. The defendant filed a written statement admitting the execution of a sale agreement dated 27.10.2005 and admitted the receipt of an advance amount of Rs.25,000/-. It is contended that the defendant was/is always ready and willing to perform his part of the contract, but the plaintiff did not comply with her part of the contract. The plaintiff committed a breach of contract. The plaintiff did not pay the balance consideration amount and dragged the matter as much as possible. It is stated that the value of the property has been increased and hence, refused to execute the registered sale deed. It is contended that the plaintiff has not approached the defendant at any point. It is contended that the plaintiff was issued a notice after the lapse of 10 months. The plaintiff had paid only a meager amount to the defendant at the time of the sale agreement. It is contended that the plaintiff has failed to prove that she was/is ready and willing to perform her part of the contract. Hence, he prays to dismiss the suit. - 5 - NC: 2025:KHC:9142 RSA No. 893 of 2016 5. The Trial Court, based on the above said pleadings, framed the following issues: (1) Whether the plaintiff proves that she is/was always ready and willing to perform her part of the contract? (2) Whether the plaintiff proves in spite of demands defendant did not comply the terms and conditions of the agreement by not executing the sale deed? (3) Whether the plaintiff is entitle for the relief as sought for? (4) What order or decree? 6. To substantiate her case, the plaintiff examined herself as PW.1, examined one witness as PW.2 and marked nine documents as Exs.P1 to 9. On the other hand, the defendant was examined as DW.1, but no documents were marked. The trial Court, after recording the evidence, hearing on both sides and on the assessment of the oral and the documentary evidence, answered issue Nos.1 and 2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. As a result, the plaintiff’s suit was partly decreed and granted the relief of recovery of earnest money, but - 6 - NC: 2025:KHC:9142 RSA No. 893 of 2016 declined to grant the relief of the specific performance of a contract. 7. The plaintiff, aggrieved by the dismissal of the suit for specific performance of contract, in O.S.No.95/2007, has filed an appeal in R.A.No.71/2010, on the file of III Additional District and Sessions Judge, Ramanagar. 8. The First Appellate Court, after hearing the parties, has framed the following points for consideration: (1) Whether the time was not the essence of contract in the present case? (2) Whether the impugned judgment and decree passed by the trial Court is erroneous, perverse, capricious and arbitrary? (3) Whether the findings recorded by the trial Court are not sustainable in the eye of law on facts of the case? (4) Whether there are reasonable and sufficient grounds to interfere with the findings recorded by the lower Court? (5) What order? - 7 - NC: 2025:KHC:9142 RSA No. 893 of 2016 9. The First Appellate Court, after hearing the learned counsel for the parties and re-assessing the oral and the documentary evidence, answered point Nos.1 to 4 in the affirmative, point No.5, as per the final order. The appeal was allowed. The judgment and decree passed by the trial Court was set aside and consequently, the plaintiff’s suit was decreed with costs, and the defendant was directed to execute the sale deed as agreed upon in the agreement dated 27.10.2005. Further, ordered that the plaintiff shall deposit the balance consideration within two months, before the trial Court. 10. The defendant, aggrieved by the judgment and decree passed in R.A.No.71/2010, on the file of III Additional District and Sessions Judge, Ramanagara, has filed this regular second appeal. 11. This Court on 14.07.2016, admitted the appeal to consider the following substantial questions of law : 1) Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial Court when the plaintiff failed to prove - 8 - NC: 2025:KHC:9142 RSA No. 893 of 2016 that she was ready and willing to perform her part of the contract within the time stipulated as contemplated under Section 16(c) of the Specific Relief Act, 1963? 2) Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial Court when the trial Court recorded a finding that the plaintiff has failed to perform her part of the contract? 3) Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial Court without following the procedure as contemplated under Order 41 Rule 31 of C.P.C? 4) Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial Court ignoring the clear admission made by PWs.1 and 2 during the course of cross- examination that they have not approached the defendant within the stipulated period? 5) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court without considering the oral and documentary evidence on record? 12. Heard the arguments of the learned counsel for the defendant and the plaintiff. 13. Learned counsel for the defendant submits that the time was the essence of contract. The plaintiff did not perform her part of the contract within the stipulated time. He submits that as per the terms and conditions of the - 9 - NC: 2025:KHC:9142 RSA No. 893 of 2016 sale agreement, the plaintiff has to pay the balance consideration amount and execute the sale deed, within 3 months. The plaintiff neither paid the balance consideration amount within 3 months and nor executed the registered sale deed within the stipulated time. He submits that the plaintiff has failed to establish that she was/is always ready and willing to perform her part of the contract as per Section 16(c) of the Specific Relief Act, 1963. He submits that the plaintiff has not produced any records to establish her financial capacity. He submits that the legal notice was issued after the expiry of more than 10 months, from the date of execution of the sale agreement. The first Appellate Court, without considering that the plaintiff was/is not ready and willing to perform her part of the contract, decreed the suit for the specific performance of a contract by reversing the judgment and decree passed by the trial Court. Hence, on these grounds, he prays to allow the appeal and set aside the judgment and decree passed by the first Appellate Court in - 10 - NC: 2025:KHC:9142 RSA No. 893 of 2016 R.A.No.71/2010 and restore the judgment and decree passed by the trial Court. 14. Per contra, learned counsel for the plaintiff submits that the defendant agreed to sell the suit schedule property for consideration of Rs.1,71,000/- and accordingly, the plaintiff paid Rs.25,000/- towards an advance consideration amount, and it was agreed that the balance sale consideration to be paid within three months to execute the registered sale deed. The plaintiff verbally requested the defendant to receive the balance sale consideration amount and execute the registered sale deed. Despite the request made by the plaintiff, the defendant did not perform his part of the contract. He submits that the plaintiff has pleaded and proved that she was/is ready and willing to perform her part of the contract. He submits that the first Appellate Court was justified in passing the impugned judgment. The judgment passed by the first Appellate Court is just and proper and - 11 - NC: 2025:KHC:9142 RSA No. 893 of 2016 does not call for any interference. Hence, he prays to dismiss the appeal. 15. Perused the records and considered the submissions of learned counsel for the parties. 16. Substantial questions of law 1 to 5: These questions are interlinked. Hence, they are taken together for a common discussion, to avoid the repetition of facts. The plaintiff, to substantiate her case, examined herself as PW1. She deposed that the defendant is the absolute owner of the suit schedule property and agreed to sell the suit schedule property for consideration of Rs.1,71,000/-. The plaintiff paid Rs.25,000/- towards an advance sale consideration amount. It was decided that the plaintiff should pay the balance sale consideration amount within three months from the date of execution of the sale agreement and get the registered sale deed executed. The plaintiff verbally requested the defendant to receive the balance consideration and execute the - 12 - NC: 2025:KHC:9142 RSA No. 893 of 2016 registered sale deed. The defendant did not give any heed to the request made by the plaintiff. Finally, the plaintiff, to prove her readiness and willingness, issued a legal notice, and the defendant replied to the legal notice on untenable grounds. The plaintiff produced a sale agreement marked as Ex.P1. Ex.P1 discloses that the defendant executed a sale agreement in favour of the plaintiff, agreeing to sell the suit property, for valuable consideration, and the plaintiff paid Rs.25,000/- as advance sale consideration to the defendant. Ex.P2 is the copy of the mutation register disclosing that suit property stood in the name of one K. Siddappa i.e., the defendant’s father, and after his demise, the names of his children was entered in the revenue records. Ex.P3 is the RTC of land bearing Sy. No. 112/2, measuring 3 acre, 18 guntas, stood in the name of K. Siddappa. Ex.P4 is the copy of the legal notice issued by the plaintiff to the defendant, calling the defendant to receive the balance sale consideration amount and execute the registered sale deed. Exs.P5 & 6 are the postal receipts. Ex.P7 is the acknowledgement, - 13 - NC: 2025:KHC:9142 RSA No. 893 of 2016 Ex.P8 is the returned postal cover. Ex.P9 is the copy of the reply notice dated 25.11.2006. During the cross-examination, it was suggested that the plaintiff had not performed her part of the contract; the said suggestion was denied. 17. On the other hand, the defendant was examined as DW.1; he reiterated the written statement averments in the examination-in-chief. He has deposed that the defendant agreed to sell the suit property for a sale consideration of Rs.1,71,000/- and received Rs. 25,000/- towards the advance sale consideration. It was agreed that the plaintiff should pay the balance sale consideration within 3 months from the date of execution of the sale agreement. The plaintiff did not pay the balance sale consideration within 3 months. The defendant was/is ready and willing to perform his part of the contract. The plaintiff was/is not ready and willing to perform her part of the contract. During the cross- examination, it was suggested that the plaintiff was/is - 14 - NC: 2025:KHC:9142 RSA No. 893 of 2016 always ready and willing to perform her part; the said suggestion was denied. 18. From the perusal of the records, it is clear that the defendant is the absolute owner of the suit schedule property, and he agreed to sell the suit schedule property for the consideration of Rs.1,71,000/- and the defendant received Rs.25,000/- as the part of the consideration amount and executed the sale agreement on 27.10.2005. It was agreed that the plaintiff should pay the balance sale consideration and execute the registered sale deed, within 3 months from the date of execution of the sale agreement. The plaintiff did not pay the balance sale consideration within 3 months. The plaintiff, after 9 months from the date of execution of the sale agreement, got issued a legal notice as per Ex.P4, calling upon the defendant to receive the balance sale consideration and execute the registered sale deed. The defendant replied to Ex.P4, stating that he is ready and willing to perform his part of the contract with the revised consideration amount, - 15 - NC: 2025:KHC:9142 RSA No. 893 of 2016 but the plaintiff neither did he agree to pay the revised consideration, nor the balance sale consideration amount within the stipulated period as per the sale agreement and the time was the essence of the contract. The sale agreement was executed on 27.10.2005, and the plaintiff issued legal notice nearly after the expiry of 9 months from the period prescribed in the sale agreement. The plaintiff has not brought anything on record to prove that she contacted the defendant, within the expiry of three months and was interested in performing her part of contract. The plaintiff's total inaction was from 26.01.2006 to 16.11.2006 (Date of issuance of legal notice). The suit was filed on 06.02.2007, i.e. after more than 7 months from the date of issuing of the legal notice. The plaintiff has not sufficiently explained the delay in performing her part of contract. 19. Continuous readiness and willingness are the condition precedents for granting the relief of specific performance. The plaintiff has proved the execution of the - 16 - NC: 2025:KHC:9142 RSA No. 893 of 2016 sale agreement, but has failed to prove that the plaintiff was/is ready and willing to perform her part of the contract. The plaintiff has failed to prove the requirement of section 16(c) of the Specific Relief Act. The trial court was justified in denying to grant a relief for the specific performance of a contract. The learned First Appellate Court has not examined the readiness and willingness in perspective of Section 16(c) and passed the impugned judgment. The First Appellate Court has not exercised the discretion properly. The impugned judgment passed by the First Appellate Court is contrary to Section 16(c) of the Specific Relief Act and arbitrary, and the same is liable to be set aside. In view of the above discussion, I answer the substantial questions No.1 to 5 in the negative. 20. Accordingly, I proceed to pass the following ORDER i. Appeal is allowed. ii. The judgment and decree dated 18.02.2016 passed in R.A.No.71/2010 by the Learned III Additional District and - 17 - NC: 2025:KHC:9142 RSA No. 893 of 2016 Sessions Judge, Ramanagara, is set aside. iii. The judgment and decree dated 17.06.2010, passed in O.S.No.95/2007 by the learned Principal Civil Judge (Sr. Dn.) Ramanagara, is restored. iv. No order as to the costs. In view of the *disposal of the appeal, pending I.A, if any, does not survive for consideration and is accordingly disposed of. SD/- (ASHOK S. KINAGI) JUDGE sks *Corrected vide chamber order dated 24.04.2025