- 1 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1623 OF 2024 (SP) BETWEEN: 1. SRI. M.N. PRAKASH S/O M.V. NAGARAJA SHETTY AGED ABOUT 69 YEARS RA NO.228/1, SMALL BAZAR STREET T. NARASIPURA MYSORE-571 124. …APPELLANT (BY SMT. ANUSHA NANDISH, ADVOCATE) AND: 1. SMT. JAYALAKSHMAMMA W/O MAHADEVA AGED ABOUT 55 YEARS 2. SRI. MAHADEVA S/O LATE MADAIAH AGED ABOUT 65 YEARS 3. SRI. MAHSESH KUMAR S/O MAHADEVA AGED ABOUT 55 YEARS 4. SRI. MANJUNATHA S/O MAHADEVA MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN AGED ABOUT 55 YEARS SMT. JAYALAKSHMAMMA Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 ALL ARE R/AT ALAGUDU, T. NARASIPURA TOWN KASABA HOBLI, MYSORE-562 132. …RESPONDENTS (BY SRI. DILIP KUMAR, ADVOCATE FOR R2; R1 AND R3 ARE SERVED; R4 MINOR – REPRESENTED BY R1) THIS RSA FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.11.2024 PASSED IN RA.No.21/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE, T.NARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.08.2023 PASSED IN OS No.54/2019 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, T.NARASIPURA. THIS APPEAL, COMING ON FOR ADMISSION, 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 05.11.2024 passed in R.A.No.21/2023 by the learned Senior Civil Judge, T. Narasipura and the judgment and decree dated 03.08.2023 passed in O.S.No.54/2019 by the learned Additional Civil Judge and JMFC, T. Narasipura. - 3 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 2. For convenience the parties are referred to based on their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for specific performance of a contract. It is the case of the plaintiff that the defendants are the absolute owners of the suit schedule property. They agreed to sell the suit schedule property for the consideration of Rs.2,00,000/- and received Rs.1,50,000/- towards the advance sale consideration amount and executed a registered sale agreement on 30.05.2016 in favour of the plaintiff. It is contended that the Special Land Acquisition Officer, Kaveri Neeravari Nigama Niyamita had acquired 5 guntas of land from the defendants. Hence, the defendants having the remaining 39 guntas only in Sy.No.146/2 of Chowhalli Village. It is contended that the balance sale consideration amount shall be paid to the defendants at the time of - 4 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 registration of the sale deed. The defendants assured the plaintiff that they would execute a registered sale deed within a short period. The plaintiff approached the defendants and requested the defendants to perform their part of the contract, but the defendants demanded additional sale consideration amount to execute sale deed. When the plaintiff expressed his unwillingness to pay the additional sale consideration, the defendants went on postponing to perform their part of the contract and tried to alienate the suit property. Plaintiff got issued a legal notice on 19.02.2019, calling upon the defendants to receive the balance sale consideration amount and execute a registered sale deed. Defendants did not reply to the legal notice and perform their part of contract. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract. Accordingly, he prays to decree the suit. 4. The defendants filed a written statement denying the plaint averments and contended that they - 5 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 executed a sale agreement dated 25.04.2014 in favour of one Nagaraju S/o. Mahadevanaika regarding the properties measuring 21 guntas in Sy.No.178/3 at Alagudu village and measuring 1 acres 4 guntas in Sy.No.146/2 of Chowhalli village. The said Nagaraj filed a suit in O.S.No.2/2016 against the defendants for specific performance of a contract and it was ended in a compromise. There was a shortage of money to give to the said Nagaraj, and hence on 30.05.2016 the defendants approached the plaintiff and requested to advance a hand- loan of Rs.1,50,000/-. In response to the defendants request, the plaintiff agreed to advance a hand loan of Rs.1,50,000/-. The plaintiff demanded to execute a sale agreement as a security to repay the loan amount. The defendants never agreed to sell the suit schedule property as alleged by the plaintiff. It is contended that the said transaction is a loan transaction and not a sale transaction. It is further contended that the plaintiff was never ready and willing to perform his part of the contract. It is contended that the defendants are ready to repay the - 6 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 amount of Rs.1,50,000/- to the plaintiff with the interest and it is contended that defendant No.1 is the absolute owner of the suit schedule property and defendants No.2 to 4 have no right, title or interest over the suit schedule property. Hence, prays to dismiss the suit. 5. The trial Court based on the pleadings of the parties, framed the relevant issues. 6. The plaintiff to substantiate his case examined himself as PW-1 and marked 10 documents as Ex.P.1 to Ex.P.10. On the other hand, defendant No.2 was examined as DW-1 and marked 6 documents as Ex.D.1 to Ex.D.6. The trial Court on the assessment of verbal and documentary evidence, decreed the suit in part only in respect of refund of advance amount and dismiss the suit regarding the specific performance of a contract. It is ordered and declared that the defendants are liable to pay additional amount of Rs.1,50,000/- with interest @6% per annum from the date of agreement of sale dated 30.05.2016 till the date of realization. The plaintiff, - 7 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 aggrieved by the judgment and decree passed in O.S.No.54/2019, dismissing the suit for specific performance of a contract, filed an appeal in R.A.No.21/2023 on the file of Senior Civil Judge, T. Narasipura. The first appellate Court on reassessing the verbal and documentary evidence, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. The plaintiff aggrieved by the impugned judgments, filed this regular second appeal. 7. Heard the arguments of learned counsel for the plaintiff. 8. Learned counsel for the plaintiff submits that the Courts below have recorded a finding that the plaintiff has proved the execution of a sale agreement. The trial Court should have decreed the suit for specific performance of a contract. She submits that the plaintiff to demonstrate that he was/is always ready and willing to perform his part of the contract, issued a legal notice on 19.02.2019. She further submits that time was not the - 8 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 essence of a contract. However, the suit is filed within 3 years from the date of denial as per Article 54 of the Limitation Act. Hence, the trial Court has committed an error in dismissing the suit for specific performance of a contract on the ground that the plaintiff has failed to establish that he was/is always ready and willing to perform his part of contract without considering the legal notice issued on 19.02.2019. Hence, on these grounds, she prays to allow the appeal. 9. Perused the records and considered the submissions of the learned counsel for the parties. 10. The plaintiff to substantiate his case examined himself as PW-1 and reiterated the plaint averments in the examination-in-chief. To establish that defendant No.1 executed a sale agreement in favour of the plaintiff on 30.05.2016, wherein, he produced Ex.P.1 i.e., agreement of sale dated 30.05.2016, defendant No.1 has agreed to sell the suit schedule property for consideration of Rs.2,00,000/- and the plaintiff paid a sum of - 9 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 Rs.1,50,000/- towards the advance sale consideration amount. It was agreed that the balance sale consideration amount would be paid within 11 months from the date of execution of a registered sale deed. Further, he approached the defendants and requested them to receive the balance consideration amount and execute a registered sale deed. Ex.P.2 is the postal receipt, Exs.P.3 and P.4 are the market value guidelines. Ex.P.5 is the certified copy of the registered sale deed dated 12.07.2012 which discloses that defendant No.1 is the absolute owner of the suit schedule property. Ex.P.6 to Ex.P.8 are the MR extracts and Ex.P.9 and Ex.P.10 are the RTC extracts. 11. During the course of cross-examination, the defendants suggested PW-1 that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. It is also suggested that defendant No.1 approached the plaintiff and requested to advance a hand loan of Rs.2,00,000/- and as a security for the - 10 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 repayment of the loan, defendant No.1 executed a sale agreement dated 30.05.2016 and the defendant received Rs.1,50,000/-. PW-1 has denied that the transaction between the plaintiff and defendant No.1 is a loan transaction. Further, on the other hand, defendant No.2 examined as DW-1, reiterated the written statement averments in the examination-in-chief and contended that the transaction between the plaintiff and defendant No.1 is a loan transaction and not a sale transaction. 12. He also deposed that the plaintiff was/is always not ready and willing to perform his part of the contract and on the other hand, the defendants were ready to refund the amount of Rs.1,50,000/- with the interest. Further, the defendants produced documents, Ex.D.1 is the cancellation deed discloses that defendant No.1 cancelled the sale agreement entered between defendant No.1 and Nagaraju, Ex.D.2 is the certified copy of the sale agreement executed by defendant No.1 in favour of the plaintiff, Ex.D.3 is the certified copy of the registered sale - 11 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 deed dated 19.11.2015. Ex.D.4 is the certified copy of the order passed in O.S.No.2/2016, which discloses that Nagaraju had filed a suit for specific performance of a contract and it was ended in a compromise. Ex.D.5 is the certified copy of the memo filed in O.S.2/2016. Ex.D.6 is the RTC extract. The defendants have admitted the execution of Ex.P.1. The defence of the defendants is that the transaction between the plaintiff and the defendants was a loan transaction, not a sale transaction. The defendants tried to vary the terms and conditions of Ex.P.1 by oral evidence. It is impermissible under Section 91 and 92 of the Indian Evidence Act. The defendants admitted regarding the execution of Ex.P.1. The plaintiff has proved that defendant No.1 agreed to sell the suit schedule property for consideration of Rs.2,00,000/-, the plaintiff paid a sum of Rs.1,50,000/- to the defendant No.1 and defendant No.1 executed a sale agreement on 30.05.2016. - 12 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 13. From the perusal of the sale agreement at Ex.P.1, there is a recital in Ex.P.1 that the sale is to be concluded within 11 months from the date of execution of the sale agreement. The said period expires on 30.04.2017. The plaintiff in order to establish that he was/is always ready and willing to perform his part of the contract, has not taken any steps to enforce the sale agreement as per Ex.P.1 till 19.02.2019. The plaintiff has got issued a legal notice on 19.02.2019. Thus, there is a delay of one year ten months from the date of expiry of 11 months. Hence, the plaintiff got issued a legal notice after the lapse of 1 year 10 months from the date of expiry of the time stipulated in the sale agreement. 14. Further, the plaintiff has also not produced any records to establish that the plaintiff had the financial capacity to pay the balance consideration amount and execute a registered sale deed. Thus, the plaintiff has failed to prove the requirements of Section 16(c) of the Specific Relief Act. The trial Court has rightly held that the - 13 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 plaintiff has failed to establish that the plaintiff was/is always ready and willing to perform his part of contract and rightly dismissed the suit for specific performance of the contract. The first appellate Court on reassessment of verbal and documentary evidence has held that : “31. But, the plaintiff of the present case is found to have not at all demanded the defendants to perform their part of contract except causing a single notice on 19.02.2019 that too within month before institution of the suit. The plaintiff seems to have issued the said notice only to make a document to the suit. If he was really the person having the readiness and willingness, he must have certainly caused the notice immediately soon after the lapse of period of 11 months specified in the agreement of sale or at least within a reasonable time after lapse of the said 11 months. But, the plaintiff took the period of almost 2 years in causing a single notice on 19.02.2019. Hence, the issuance of the said notice does not show any continuous readiness and willingness on the part of the plaintiff. 32. Therefore, I am of an opinion that the plaintiff has failed in proving the readiness and willingness on his part. Hence, the trial Court is right in holding that the plaintiff failed to that extent. Accordingly, the point No.1 is answered in the affirmative.” 15. Thus, both the Courts below have categorically recorded a finding of fact that the plaintiff has failed to - 14 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 establish that he was/is always ready and willing to perform his part of the contract. 16. The plaintiff filed an application for the production of additional evidence under Order 41 Rule 27 of CPC. In support of an application, filed an affidavit stating that he was/is always ready and willing to complete his part of obligation under the registered agreement of sale dated 30.05.2016 i.e., regarding the balance sale consideration amount and it is contended that the defendants have not performed their part of obligation under the agreement of sale dated 30.05.2016. It is stated that he is a businessman involved in the business of textiles and he has the capacity to pay Rs.50,000/- and produced income tax returns acknowledgment for 2017-18 to 2024-25. The learned counsel for the plaintiff submits that the said document goes to the root of the case to establish whether the plaintiff had the financial capacity to pay the balance sale consideration amount. Hence, he prays to allow the application. - 15 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 17. Perused the contents of the affidavit of the plaintiff. Though the said documents were in the custody of the plaintiff, the plaintiff has not made any attempt to produce the said records before the trial Court and the first appellate Court. The object of Rule 27 of Order 41 of the Code of Civil Procedure, 1908 (for short CPC) is not to fill up the lacuna. The Hon’ble Apex Court in the case of N. Kamalam and another Vs. Ayyaswamy and another reported in 2007 (1) SCC 503 held that the provision of Rule 27 of CPC are not designed to help the parties to patch up the weak points and to fill up the omission earlier made in the Courts of Appeal and the jurisdiction of the Appellate Courts is restricted for permitting such an additional evidence. 18. As observed above, said documents were in the custody of the plaintiff. The plaintiff could have produced the said documents before the trial Court or before the first appellate court and further, the plaintiff has not stated why he had not produced the said documents - 16 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 before the trial Court. The plaintiff has not fulfilled the requirements of order 41 Rule 27 of the CPC. Hence, I do not find any grounds to entertain I.A.No.2/2024. 19. In view of the above discussion, I do not find any error in the impugned judgments or any substantial questions of law that arise for consideration in this appeal. Accordingly, I proceed to pass the following: ORDER (i) The appeal is dismissed. (ii) The judgment and decree dated 05.11.2024 passed in R.A.No.21/2023 by the learned Senior Civil Judge, T. Narasipura and the judgment and decree dated 03.08.2023 passed in O.S.No.54/2019 by the learned Additional Civil Judge and JMFC, T. Narasipura are confirmed. (iii) I.A.No.2/2024 is rejected. - 17 - NC: 2025:KHC:13343 RSA No. 1623 of 2024 No order as to the costs. In view of the dismissal of the appeal, I.A.No.1/2024 does not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK