- 1 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 969 OF 2022 (SP) BETWEEN: 1. RAJASHREE B. NAYAK W/O LATE DR. K.B.NAYAK AGED ABOUT 58 YEARS R/AT SHENOY HOUSE PARKALA, UDUPI TALUK UDUPI DISTRICT- 574 118. …APPELLANT (BY SRI. P.N.HARISH, ADVOCATE) AND: 1. N.B.MABEN SINCE DEAD BY HIS LRS SHARLIN GOJER D/O LATE N.B. MABEN AGED ABOUT 50 YEARS R/AT SWEET HOME ASHIRWAD BUS STOP KORANGRAPADY VILLAGE UDUPI TALUK-574 118. 2. SAMSON MABEN S/O LATE N.B. MABEN AGED ABOUT 48 YEARS 3. SHARON MABEN S/O LATE N.B. MABEN AGED ABOUT 46 YEARS Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 R2 AND R3 ARE R/AT D.NO.S-78A(1) ISHWARA NAGAR, NO.78 HERGA VILLAGE UDUPI TALUK- 574 118. …RESPONDENTS (BY SRI. R.A. DEVANAND, ADVOCATE FOR R1-R3) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.03.2022 PASSED IN OS.NO.29/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, UDUPI, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT The captioned appeal is by the defendant questioning the relief for specific performance of contract granted by the Court below in O.S.No.29/2011. 2. For the sake of convenience the parties are referred to as per their rank before the trial Court. 3. The plaintiff, who is the tenant in possession of the suit schedule property, has instituted the present suit seeking specific performance of an agreement for sale - 3 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 dated 07.10.2009. As per the plaintiff, the agreed sale consideration was Rs.11,00,000/-, out of which a sum of Rs.1,00,000/- was paid to the defendant on the date of execution of the agreement. The plaintiff contends that under the terms of the agreement, the defendant was required to procure all necessary documents to complete the transaction, including obtaining conversion of the suit property for non-agricultural use. It is the specific case of the plaintiff that the defendant agreed to obtain the requisite conversion order and other approvals before execution of the sale deed. The plaintiff further avers that he met the defendant in the office of her advocate, Sri B.K. Bhat, on 06.12.2009, when the defendant assured him that a single layout plan and sketch would be procured within three days, and the sale transaction would thereafter be concluded. 4. The plaintiff alleges that despite repeated requests and follow-up, the defendant failed to fulfill her obligations and did not proceed with the execution of the - 4 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 sale deed. Consequently, the plaintiff issued a legal notice dated 07.09.2010, calling upon the defendant to complete the transaction. Asserting that he has always been ready and willing to perform his part of the contract, the plaintiff has filed the present suit seeking a decree for specific performance. 5. Upon service of summons, the defendant entered appearance and filed her written statement, wherein she admitted the execution of the agreement dated 07.10.2009 and acknowledged receipt of Rs.1,00,000/- as advance. However, the defendant contended that time was the essence of the contract and that the balance sale consideration was required to be paid on or before 06.12.2009. The defendant denied the plaintiff’s assertion that she was obligated to secure the conversion order and other approvals. While admitting that she had agreed to furnish certain documents to enable the plaintiff to obtain financial assistance, the defendant denied any obligation to obtain conversion, - 5 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 layout plan, or sketch. The defendant further contended that the plaintiff was not financially capable of paying the balance consideration and was therefore never ready and willing to perform his part of the contract. It was thus claimed that there was a breach on the part of the plaintiff and that the advance amount stood forfeited. 6. Upon the death of the original plaintiff, his legal representatives, plaintiffs No.1(a) to 1(c), were brought on record. The plaintiffs examined the wife of the original plaintiff as P.W.1, plaintiff No.1(b) as P.W.2, and a bank official as P.W.3, in addition to producing supporting documents. To substantiate their case that N.B. Maben was always ready and willing to perform his part of the contract, the plaintiffs relied on the legal opinion and valuation report marked as Ex.P8 and the testimony of the bank official to establish financial capability. - 6 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 7. In rebuttal, the defendant examined herself as D.W.1 and produced documents pertaining to proceedings under the HRC Act. 8. Upon appreciation of the oral and documentary evidence, the Trial Court answered Issue Nos.1 and 3 in the affirmative. While recording a finding on Issue No.3, the Trial Court held that the plaintiff had successfully demonstrated readiness and willingness to perform his contractual obligations. Consequently, the Trial Court decreed the suit and granted the relief of specific performance. The said judgment and decree are now under challenge in this appeal. 9. Learned counsel appearing for the appellant- defendant, reiterating the contentions raised in the appeal memorandum, vehemently argued that while the transaction itself stands admitted, the defence is premised on the assertion that time was the essence of the contract and that the plaintiff failed to pay the balance - 7 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 consideration within the stipulated time. Counsel further contended that the plaintiff’s claim regarding the necessity of conversion and layout approvals is unsubstantiated and contrary to the legal opinion (Ex.P8) relied on by the plaintiff himself. It is urged that the Trial Court’s finding on Issue No.3 is perverse and contrary to the evidence on record, warranting interference by this Court. 10. Per contra, learned counsel for the respondents/plaintiffs submitted that although the agreement (Ex.P7) mentions a specific date, there is no conclusive material to establish that time was the essence of the contract. According to him, the reference to a date in the agreement is merely indicative and not determinative of contractual intention. Referring to Ex.P8 and the evidence of P.W.3, counsel contended that the plaintiff had arranged for financial assistance through a loan and was fully prepared to complete the transaction. It is therefore submitted that the Trial Court has rightly - 8 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 exercised discretion in granting the equitable relief of specific performance and that the appeal merits dismissal. 11. Heard the learned counsel appearing for defendant and learned counsel appearing for plaintiff. This Court has independently examined the pleadings of the parties and the oral and documentary evidence. 12. The following points would arise for consideration: "(i) Whether the finding of the trial Court that plaintiff has succeeded in proving his readiness and willingness suffers from perversity and warrants interference? (ii) Whether trial Court while granting discretionary relief of specific performance has examined the equities and exercised discretion judiciously? (iii) What order?" - 9 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 FINDING ON POINT Nos.(i) and (ii): 13. Before this Court delves into the matter, this Court deems it fit to cull out paras 2 and 3 of the suit agreement marked at Ex.P7 which would have significant bearing on the core issue as to whether time is the essence of contract. For ready reference, the same is extracted as under: "2. The 2nd party shall pay the balance sale consideration to the 1st party above said on or before 06.12.2009, time being the essence of the contract and execute the relevant documents in favour of the 2nd party for purposes of vesting absolute interest in favour of the 2nd party and he Ist party has agreed to provide the relative documents in favour of the IInd party immediately for the purposes of proceeding with execution of the deed of conveyance and also for availing financial arrangement for nationalized bank. 3. The time fixed under this Agreement for the execution of the Regular Sale Deed by the Ist party in favour of the 2nd Party is on or before 06-12-2009 which is the essence of this Agreement. However, the parties are at liberty to extend the period to perform the contract by mutual agreement in writing." (Emphasis Supplied by me) - 10 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 14. A close reading of paragraph (3) of the suit agreement assumes significance in the present case. This clause unequivocally reveals that the parties did not intend for time to be the essence of the contract. The language employed in the agreement lacks any indication that the sale transaction was to be concluded within a fixed and rigid timeframe. In the absence of such stipulation, and having regard to the nature of the transaction, it can be safely inferred that the agreement was intended to be performed within a reasonable period, and not within any stipulated deadline. Therefore, any delay in conclusion of the transaction, particularly when attributable to the defendant’s non-compliance with her obligations, cannot be construed as a breach by the plaintiff. 15. The next crucial aspect that warrants examination is whether the plaintiff made bona fide and diligent efforts to discharge his obligation to pay the balance sale consideration. In this regard, Ex.P8 assumes critical importance. It evidences that the plaintiff, along - 11 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 with his wife, approached the Badagubettu Credit Co- operative Society and submitted an application seeking a housing loan to facilitate the completion of the sale transaction. The plaintiff also procured a legal opinion from one Krishna Bhat, a practicing advocate, in support of his loan application. From the opinion, it is clear that the plaintiff attempted to convince the financial institution that conversion of the land may not be necessary. However, the legal opinion, while acknowledging the plaintiff’s request, nonetheless advised production of a conversion endorsement to avoid legal complications. It was also observed in the opinion that the land under the suit agreement required to be surveyed prior to execution of the sale deed. These facts collectively demonstrate that the plaintiff acted in good faith and made sincere attempts to secure a loan to perform his part of the contract. 16. The version of the defendant in her cross- examination is telling. She has deposed that all relevant documents necessary for the sale transaction were - 12 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 secured and handed over to her advocate, Sri B.K. Bhat. However, when a specific suggestion was made to the defendant during cross-examination regarding whether the suit property had been surveyed, she claimed that the relevant documents were handed over to the advocate. Despite such a categorical assertion, no material documents evidencing the survey or the readiness to complete the transaction were produced before the Court. This undermines the credibility of the defendant’s claim that she had complied with all pre-sale obligations. 17. The testimony of P.W.3, an official of the Badagubettu Credit Co-operative Society, fortifies the case of the plaintiff. P.W.3 has deposed without ambiguity that the plaintiff had applied for a loan, and that the loan was duly sanctioned. This piece of evidence corroborates the documentary material placed on record and unequivocally establishes the plaintiff’s efforts and financial preparedness to fulfill his contractual obligation. - 13 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 18. A holistic evaluation of the evidence adduced by the plaintiff reveals yet another material fact namely, that the defendant had sold similar sites in the same layout to third parties during the subsistence of the suit agreement. This conduct of the defendant, in alienating portions of the suit schedule property to third parties, indicates her intention to resile from the suit agreement. In contrast, the plaintiff, by securing legal opinion, approaching the co-operative society for loan, and persisting in his demand for completion of the transaction, has consistently displayed his readiness and willingness to perform his part of the contract. The defendant, however, has failed to discharge her corresponding obligation of furnishing necessary documents, including the conversion order and survey sketch, to facilitate execution of the sale deed. In such a context, and particularly in the absence of any contractual stipulation making time the essence, this Court finds that the plaintiff has successfully established his case. - 14 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 19. The legal notice issued by the plaintiff, calling upon the defendant to complete the sale transaction, serves as further evidence of his continuous willingness to perform the contract. It also highlights the defendant’s default in failing to co-operate in the transaction. The testimony of P.W.3 and the documentary evidence brought on record clearly demonstrate that the plaintiff made all possible efforts to secure the required funds through institutional finance. These facts cumulatively entitle the plaintiff to the equitable and discretionary relief of specific performance. On reassessment of the entire evidence, both oral and documentary, this Court is of the considered view that the equities tilt in favour of the plaintiff. 20. This Court is of the considered view that the discretionary relief of specific performance ought to be exercised in favour of the plaintiff, having regard to the overall conduct of the parties and the equities that emerge from the evidence on record. The plaintiff has, at every stage, demonstrated his bona fides and readiness and - 15 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 willingness to perform his part of the contract. He promptly paid an advance sale consideration of Rs.1,00,000/- at the time of execution of the agreement and thereafter took all necessary steps to secure a loan from a financial institution to pay the balance consideration. His efforts included approaching the Badagubettu Credit Co-operative Society along with his wife, securing legal opinion, and even attempting to persuade the society to process the loan without insisting on conversion, though he eventually agreed to furnish the conversion endorsement, as advised. In contrast, the defendant, despite being contractually obliged to furnish relevant documents, including conversion order and survey sketch, to enable the plaintiff to complete the transaction, failed to do so. Notably, in her cross- examination, the defendant made a vague and unsubstantiated claim that the necessary documents were handed over to her advocate, without producing any such documents before the Court. More significantly, the - 16 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 defendant, during the subsistence of the suit agreement, proceeded to develop the land and alienated portions of the same to third parties, thereby establishing that defendant intended to sell the property in fractions after securing conversion. This conduct of defendant in not honouring the suit agreement not only contravenes the terms of the agreement but also reflects an intention to renege from the contractual obligation. In such circumstances, where the plaintiff has acted diligently and equitably, and the defendant has acted in breach, it would be wholly unjust to deny the relief of specific performance. Equity, which aids the vigilant and not those who sleep over their duties, clearly leans in favour of the plaintiff, who has come to Court seeking enforcement of a lawful agreement and has substantiated his claim through cogent evidence. 21. The defendant has not been able to establish that time was the essence of the contract or that the plaintiff failed to perform his obligations. Accordingly, this - 17 - HC-KAR NC: 2025:KHC:28980 RFA No. 969 of 2022 Court answers point (i) in the negative and point (ii) in the affirmative. Finding on Point No.3: 22. Having recorded findings on points (i) and (ii) in the negative and affirmative respectively, the appeal is devoid of merits and does not warrant any interference. Accordingly, the appeal is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB List No.: 1 Sl No.: 50