- 1 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1733 OF 2023 (SP) BETWEEN: SRI. B. S. KARTHIK S/O. SRI. B. A. SUBRAMANI, AGED ABOUT 33 YEARS, RESIDING AT NO. G23, 1ST CROSS, H-ROAD, KESHAVANAGAR, MAGADI ROAD, BENGALURU-560 023. …APPELLANT (BY SMT. ARCHANA K M.,ADVOCATE) AND: SRI. A. M. KUMAR S/O. SRI. A. S. MUNI REDDY, AGED ABOUT 58 YEARS, REPRESENTED BY HIS GPA HOLDER, M/S. CITY SHELTERS, A PARTNERSHIP FIRM HAVING ITS OFFICE AT FLAT NO. 102, NO. 99, DIAMOND NEST, N.R. COLONY, BDA MAIN ROAD, OLD AIRPORT ROAD, BENGALURU-560 017, REPRESENTED BY ITS MANAGING PARTNER, MR. D. N. SINGH. …RESPONDENT (RESPONDENT-SERVED) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.06.2023 PASSED IN OS No. 4795/2022 ON THE FILE OF THE LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR SPECIFIC PERFORMANCE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT This appeal by the unsuccessful plaintiff in O.S.No.4795/2022 is directed against the impugned judgment and decree dated 02.06.2023 passed by the LIX Additional City Civil and Sessions Judge, Bengaluru. 2. Heard learned counsel for the appellant and perused the material on record. The respondent having been served with notice of the appeal has chosen to remain unrepresented and has not contested the appeal. 3. A perusal of the material on record will indicate that the appellant-plaintiff instituted the aforesaid suit against the respondent-defendant for specific performance and other reliefs in relation to suit schedule immovable properties and for other reliefs. It was contended that the respondent- defendant agreed to sell the suit schedule properties in favour of the appellant-plaintiff and executed the sale agreement dated 14.01.2011 in his favour by receiving the entire sale consideration of Rs.12,00,000/- from the plaintiff. It was further contended that despite repeated request - 3 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 made by the appellant-plaintiff, the respondent did not perform his part of the contract and did not execute registered sale deed in favour of the plaintiff and instead attempted to alienate the suit schedule property in favour of third parties, thereby constraining the plaintiff to institute the instant suit against him. 4. The defendant filed a memo of appearance through his counsel but subsequently, neither filed vakalath nor written statement and did not contest the suit. 5. The plaintiff examined himself as PW-1 and the sale agreement dated 14.01.2011 was marked as Ex.P-1 and the Encumbrance Certificate as Ex.P-2. The defendant neither cross- examined PW-1 nor adduced any oral or documentary evidence. 6. The Trial Court framed the following points for consideration: (1) Whether the plaintiff proves that the defendant has agreed to sell the plaint B schedule property and received the entire sale consideration of Rs.12.00 lakhs and executed an Agreement of Sale in his favour on 14.01.2011? - 4 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 (2) Whether the plaintiff is ready and willing to perform his part of contract under the Agreement of Sale? (3) Whether the plaintiff is entitled for decree as prayed? (4) What order or decree?” 7. A perusal of the impugned judgment and decree will indicate that the Trial Court answered point No.1 in favour of the plaintiff by holding that he had proved that the defendant had agreed to sell the suit schedule property in his favour by executing sale agreement at Ex.P-1 dated 14.01.2011 by receiving the entire sale consideration of Rs.12,00,000/- from the plaintiff. The Trial Court also answered issue No.2 in favour of the plaintiff by holding that he was always ready and willing to perform his part of the contract. While arriving at the aforesaid conclusion, the Trial Court held as under: 16. POINT Nos.1 to 3: To prove the case of the plaintiff, he has reiterated the plaint averments by examining himself as PW.1. He has filed his affidavit and produced 2 documents i.e., Agreement of Sale and Encumbrance Certificate at Ex.P.1 and P.2. There is no cross-examination. - 5 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 17. The learned counsel for the plaintiff has submitted his arguments basing on the plaint averments as well as the documents produced i.e., the Agreement of Sale dated 14.01.2011 and E.C. pertaining to the property. He has also submitted that though the defendant put his appearance through his Advocate, but inspite of sufficient opportunity, he has not chosen to file his written statement. He has also pointed out towards the contents of the Agreement of Sale. Admittedly, the defendant is the absolute owner of the plaint B schedule property and he has received the entire sale consideration of Rs.12.00 lakhs. Inspite of several requests made by the plaintiff, the defendant is not ready to execute the registered Sale Deed as agreed under the Agreement of Sale. The time is not the essence of the contract. The time agreed between the parties is 150 months. The Agreement of Sale is of the year 2011, the suit is filed in the year 2022, which is in time. He has also pointed out that possession is to be handed over on the date of the execution of the registered Sale Deed. He has also submitted the prayer for refund of sale consideration is to be considered. He has also relied upon a decision reported in (1999)3 SCC 573 in Vidyadhar Vs. Manikrao and another. 18. After hearing the learned Counsel for the - 6 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 plaintiff, I have gone through the materials on record and also suit document i.e., Agreement of Sale, which is an unregistered document dated 14.01.2011. After perusing the recitals, admittedly, the defendant is the owner of the B schedule property, it is a Flat on I Floor of “Satellite Splendor” totally measuring 1480 sq.ft. With 385 sq.ft. of undivided share, interest, right and title built in the A schedule property. The recitals clearly go to show that “the second party has this day paid the entire sale consideration and there is no other obligation pending on the part of the second party”. The second party is the plaintiff herein. The plaintiff has not examined any of the witnesses as mentioned in Ex.P.1. Time is not the essence of the contract. It is also one of the conditions and recital mentioned in Ex.P.1. The Ex.P.2 is the Encumbrance certificate pertaining to plaint B schedule property dated 15.02.2023. There is no encumbrance on the said property. The plaintiff has not produced the khata extract pertaining to plaint B schedule property or plaint A schedule property. 19. In regard to his part of contract, the plaintiff had appellant approached the defendant on 3 occasions as stated supra. Since the defendant has failed to make out his defence, inspite of appearance through his Advocate. 20. On the basis of proved facts analyzed - 7 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 in the light of law applicable with the version of plaintiff, this Court is of the opinion that suit of the plaintiff needs to be allowed.” 8. Despite having answered issues 1 and 2 in favour of the appellant-plaintiff and upholding his claim, the Trial Court refused to grant the relief of specific performance and instead erroneously directed refund of the earnest money of Rs.12,00,000/- paid by the plaintiff to the defendant by assigning wholly untenable reasons contrary to the material on record and the provisions contained in Section 22 of the Specific Relief Act, 1963 as hereunder: 16. As the defendant has put his appearance, but not put forth his defence, hence, the evidence of PW.1 and documents referred above produced on behalf of the plaintiff remained unchallenged. Since more than a decade the plaintiff kept quiet and now in the year 2022 filed this suit. He is not in the possession of the suit property. Therefore, this Court constrained to hold that the plaintiff is entitled for refund of the earnest money only and not the relief of specific performance of contract. Accordingly, I answer point Nos.1 and 2 in the affirmative and point No.3 partly in the affirmative. - 8 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 9. A perusal of the aforesaid finding recorded by the Trial Court will clearly indicate that the Trial Court has proceeded on the erroneous premise that the plaintiff had kept quite for more than ten years and was not in possession of the suit schedule property and was accordingly not entitled to the relief of specific performance. In this context, the Trial Court failed to appreciate that the sale agreement at Ex.P-1 specifically stipulated that the period for completion of the sale transaction was 150 months (more than 12 years) from the date of the sale agreement dated 14.01.2011 and consequently, the instant suit filed in 2022 was within limitation and the said circumstance could not have been made basis by the Trial Court to deny/refuse the relief of specific performance especially when the respondent-defendant had not contested the suit. So also, the Trial Court erred in holding that since the plaintiff was not in possession of the suit schedule property, he was not entitled to the relief of specific performance; in this regard also, the Trial Court failed to appreciate that there was no connection/nexus whatsoever between grant of relief of specific performance in favour of the plaintiff whose claim was upheld by the Trial Court itself and his possession over the suit schedule property and as such, even this finding recorded by the Trial Court deserves to be set aside. It is - 9 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 also significant to note that in the absence of any prayer made by seeking refund of the advance amount of Rs.12,00,000/- as contemplated under Section 22 of the Specific Relief Act, 1963, the question of passing a decree for refund would not arise in the facts and circumstances of the instant case. At any rate, having answered points 1 and 2 in favour of the plaintiff, the Trial Court clearly misdirected itself in refusing to grant the relief of specific performance by assigning wholly baseless and untenable reasons and consequently, the impugned judgment and decree passed by the Trial Court deserves to be set aside and the suit of the plaintiff for specific performance deserves to be decreed in his favour. 10. In the result, I pass the following: ORDER i) The appeal is hereby allowed. ii) The impugned judgment and decree dated 02.06.2023 passed in O.S.No.4795/2022 by LIX Additional City Civil and Sessions Judge, Bengaluru insofar as it relates to rejecting the prayer for specific performance sought for by the appellant-plaintiff - 10 - NC: 2025:KHC:15607 RFA No. 1733 of 2023 and instead directing the respondent-defendant to refund Rs.12,00,000/- back to the appellant –plaintiff is hereby set aside. iii) The said suit of the appellant – plaintiff in O.S.No.4795/2022 is hereby decreed as prayed for by directing the respondent-defendant to execute a registered sale deed in favour of the appellant-plaintiff within a period of four months from today. Sd/- (S.R.KRISHNA KUMAR) JUDGE Srl/Mds