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2025 DAILYLAW 4845 (KAR)

SRI. BHARAO S/O YALLAPPA KAGANKAR v. SHRI. BHARMA S/O YALLAPPA KAGANKAR

RFA/100202/2020 · 2025-01-31

Ashok S Kinagi, Umesh M Adiga

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100202 OF 2020 (SP) BETWEEN: SRI. BHAURAO S/O. YALLAPPA KAGANKAR, AGE: 48 YEARS, OCC: BUSINESS, R/O: PLOT NO.39/4, VAIBHAV NAGAR, BELAGAVI, DIST: BELAGAVI, PIN: 590001. …APPELLANT (BY SRI. DINESH M. KULKARNI, ADVOCATE) AND: SHRI. BHARMA S/O. YALLAPPA KAGANKAR, AGE: 49 YEARS, OCC: CARPENTER, R/O. PLOT NO.39/4, MARGAI GALLI, KANGRALI (B.K) KALMESHWAR NAGAR, BELAGAVI, DIST: BELAGAVI, PIN: 590001. …RESPONDENT (BY SRI. S. G. KAKATKAR AND SRI. M. N. BIKKANNAVAR, ADVOCATES) THIS RFA IS FILED U/S.96 R/W. ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT DATED 06.02.2020 AND DECREE DATED 20.02.2020 PASSED BY THE IV ADDL. SENIOR CIVIL JUDGE AND JMFC, BELAGAVI IN O.S. NO.310/2017, IN PARTLY DECREEING THE SUIT, AS NULL AND VOID AND DECREE THE SUIT AS PRAYED FOR AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal by the appellant, challenging the judgment and decree dated 06.02.2020 passed in O.S.No.310/2017 by the learned VI Additional Senior Civil Judge and JMFC, Belagavi, dismissing the suit for specific performance of the contract. 2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellant was the plaintiff, and the respondent was the defendant. 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 the contract. It is the case of the plaintiff that the defendant is the absolute owner of the suit schedule property. He agreed to sell the suit schedule property for consideration of Rs.65,00,000/-, and the - 3 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 plaintiff paid an advance sale consideration amount of Rs.1,00,000/-, and the defendant executed a sale agreement on 28.04.2014. It was agreed that, the defendant agreed to obtain consent and NOC from all the heirs at the time of signing the deed of alienation. It is contended that, the sale transaction is to be completed by paying the balance sale consideration of Rs.64,00,000/-. It was agreed that, the actual physical possession of the suit property would be delivered at the time of execution of the registered sale deed. The plaintiff requested the defendant several times to accept the balance consideration amount of Rs.64,00,000/- and execute the registered sale deed in his favour. It is contended that, though, the defendant agreed to execute the registered sale deed in favour of the plaintiff, but the defendant went on postponing it for one reason or the other. It is contended that, the plaintiff was/is always ready and willing to perform his part of a contract. It is also contended that, the defendant is trying to alienate the suit property, to defeat the plaintiff’s right. The plaintiff got - 4 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 issued a legal notice on 04.07.2017, calling upon the defendant to receive the balance consideration amount and execute the registered sale deed. The defendant replied to the legal notice alleging that, the plaintiff was/is not ready and willing to perform his part of the contract. Hence, a cause of action arose for the plaintiff to file a suit for the specific performance of a contract. Accordingly, prays to decree the suit. 4. The defendant filed a written statement denying the averments made in the plaint. Except admitting that defendant is the absolute owner of the suit schedule property, it is contended, and denied the execution of the sale agreement in favour of the plaintiff. It is contended that, the defendant is the absolute owner of the suit schedule property. During March 2014, he was in financial difficulty; therefore, he met the plaintiff. Therefore, to meet the financial difficulty, he thought of selling the said land. The plaintiff approached the defendant, and after negotiations, the plaintiff agreed to purchase 7 guntas of - 5 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 land for a total consideration of Rs.65,00,000/- and an agreement was reduced into writing on 28.04.2014. On the date of entering into the sale agreement, the plaintiff paid Rs.1,00,000/- in advance and agreed to pay the remaining sale consideration amount within 15 days. The defendant needed money, but the plaintiff did not pay the balance amount within 15 days and get the registered sale deed executed. A time limit was imposed in the agreement. The defendant repeatedly approached the plaintiff to pay the balance sale consideration amount. The plaintiff went on postponing on one or the other pretext. He submits that, the plaintiff has not performed his part of a contract. The defendant was ready and willing to perform his part of the contract. The plaintiff got issued a legal notice, and the defendant has replied to the said legal notice, stating that, on account of non payment of balance sale consideration within the stipulated period in the sale agreement, the agreement stands cancelled. It is contended that the plaintiff has filed this suit to harass the defendant. There is no cause of action which arose to - 6 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 file a present suit. The cause of action shown in the plaint is false and imaginary. Hence, prays to dismiss the suit. 5. The trial court, based on the pleadings of the parties, framed the following issues: 1) Whether the plaintiff prove that, the defendant has agreed to sell the suit property for Rs.65,00,000/- and executed an agreement of sale in his favour on 28.04.2014? 2) Whether the plaintiff proves that the defendant had received an amount of Rs.1,00,000/- towards advance sale consideration? 3) Whether the defendant proves that the suit document is a product of fraud? 4) Whether the plaintiff proves that he was always ready and willing to perform his part of contract? 5) Whether the plaintiff is entitled for the reliefs as claimed? 6) What order or decree? 6. The plaintiff, to prove his case, examined himself as PW.1 and examined one witness as PW.2 and marked 9 documents as Exs.P1 to 9. The defendant has - 7 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 not adduced the evidence but marked only one document, as Ex.D1. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue Nos.3 and 4 in the negative, issue Nos.5 and 6 as per the final order. The suit of the plaintiff was partly decreed with costs vide judgment dated 06.02.2020. The plaintiff’s claim for specific performance of the agreement- Ex.P.1 was rejected. The defendant was directed to refund all earnest money of Rs.1,00,000/- to the plaintiff. The plaintiff, aggrieved by the dismissal of the suit for the specific performance of a contract, filed this regular first appeal. 7. Heard the learned counsel for the plaintiff and the learned counsel for the defendant. 8. Learned counsel for the plaintiff submits that, the defendant had admitted the execution of the sale agreement, and also received an advance sale consideration amount of Rs.1,00,000/-. He submits that, - 8 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 the plaintiff was/is always ready and willing to perform his part of the contract, but the defendant did not perform his part of the contract. He submits that, the suit property is still vacant and he also submits that, the plaintiff has filed I.A.No.2 before the trial Court, seeking permission to deposit the balance sale consideration amount before the trial Court. The trial Court did not pass any order on the said application. Hence, the trial Court has committed an error in passing the impugned judgment. The trial Court partly decreed the suit of the plaintiff, on the contrary, dismissed the suit for specific performance of a contract. He also submits that, the defendant has not entered the witness box. The judgment and decree passed by the trial Court is arbitrary and erroneous. Hence, prays to allow the appeal. 9. Per contra, learned counsel for the defendant submits that, the plaintiff has filed a suit for specific performance of the contract. The burden is on the plaintiff to prove the execution of the sale agreement and - 9 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 readiness and willingness. Admittedly, in the instant case, the defendant needed money to meet the financial difficulties. He agreed to sell the suit schedule property. He submits that time was the essence of the contract. The plaintiff was supposed to pay the entire balance sale consideration of Rs.64,00,000/- to the defendant within 15 days. The plaintiff did not pay the amount of Rs.64,00,000/- within 15 days. He also submits that, the plaintiff has no financial capacity to purchase the suit schedule property for the consideration of Rs.65,00,000/-. The plaintiff, by paying a meager amount, has kept quiet for more than 2½ years without performing his part of the contract. The trial court was justified in recording the finding that, the plaintiff had failed to establish that, he was/is ready and willing to perform his part of the contract. He also submits that, merely the defendant has not led oral and documentary evidence, it does not constitute for decreeing the suit for specific performance of the contract. He also further submits that, the plaintiff filed an application in I.A.No.2 and did not press for - 10 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 disposal before the trial Court to show his bonafideness till the passing of the judgment by the trial court. The conduct of the plaintiff is not bonafide. Hence, on these grounds, he prays to dismiss the appeal. 10. Perused the records, and considered the submissions of the learned counsel for the parties. 11. The points that arise for our consideration are the following: 1) Whether the plaintiff prove that he was/is always ready and willing to perform his part of the contract? 2) Whether the plaintiff prove that the trial Court committed an error in dismissing the suit for specific performance of the contract? 3) What order or decree? Point Nos.1 and 2: These points are interlinked and they are taken together for common discussion to avoid the repetition of facts. - 11 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 12. The plaintiff, to substantiate his case, examined himself as PW.1. He deposed that, the defendant is the absolute owner of the suit schedule property, and the defendant is the brother of the plaintiff. In March 2014, the defendant was in financial difficulty. The plaintiff approached the defendant and offered to purchase the suit schedule property for the consideration of Rs.65,00,000/-. The defendant agreed to sell the suit schedule property for the aforesaid consideration amount. It was agreed that on the said date, the plaintiff paid a sum of Rs.1,00,000/- as an advance sale consideration amount, and it was agreed that the balance sale consideration amount was to be paid within 15 days from the date of execution of the sale agreement and after receiving the balance sale consideration amount the defendant should execute the registered sale deed. The plaintiff requested the defendant to receive the balance consideration amount, and execute the registered sale deed. The defendant went on postponing on one or the other reasons. The plaintiff got issued a legal notice to show that the plaintiff was/is - 12 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 ready and willing to perform his part of the contract, but the defendant replied to the legal notice. The plaintiff to establish that, the defendant executed the sale agreement, produced the original sale agreement marked as Ex.P1. Ex.P2 is the office copy of the legal notice issued by the plaintiff to the defendant on 04.07.2017, wherein, the plaintiff called upon the defendant to receive the balance consideration amount and execute the registered sale deed. The said notice was duly served on the defendant. The defendant replied to the legal notice vide reply dated 22.07.2017, wherein the defendant admitted the execution of the sale agreement and receiving of Rs.1,00,000/- as an advance. It is stated that the plaintiff did not pay the balance sale consideration amount despite repeated requests made by the defendant. The plaintiff was not ready and willing to perform his part of the contract, and further, he has not received the cheque of Rs.1,00,000/- drawn in the plaintiff’s name. He has returned the earnest money. Ex.P3 is the postal receipt, Ex.P4 is the postal acknowledgment, Ex.P5 is the reply - 13 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 notice dated 22.07.2017 to the legal notice, Ex.P6 is the cheque, Ex.P7 is the RTC extract of suit land property, Ex.P8 is the copy of the property register card, Ex.P9 is the true copy of the Bank passbook of PW.2, wherein PW.2 was possessing an amount of Rs.31,50,633/- as of 14.10.2019. Though, the defendant did not enter the witness box, in a suit for specific performance of a contract, the burden is on the plaintiff to establish the execution of the sale agreement, and readiness and willingness. 13. Admittedly, in the instant case, the plaintiff and defendant have entered into an agreement for sale regarding the suit schedule property for the consideration of Rs.65,00,000/-, and the plaintiff paid a sum of Rs.1,00,000/- as an advance sale consideration amount, and it was agreed that, the plaintiff shall pay the remaining balance sale consideration amount of Rs.64,00,000/- within 15 days from the date of execution of the sale agreement. - 14 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 14. Though, time was not an essence of the contract in the agreement, PW.1, in the course of cross- examination, admitted that, the balance sale consideration amount was to be paid within 15 days from the date of execution of the sale agreement. Admittedly, the plaintiff did not pay the balance consideration amount within 15 days from the date of execution of a sale agreement. Further, to show that, PW.2 was about to advance Rs.30,00,000/- to the plaintiff for purchasing the suit schedule property, and PW.2, during the cross- examination, admits that the plaintiff did not possess sufficient funds to purchase the suit schedule property. The admission of PW.2 is sufficient to establish that the plaintiff had no funds to purchase the suit schedule property. The plaintiff has kept quiet for more than 2½ years and thereafter got issued a legal notice as per Ex.P2. The defendant replied to the legal notice stating that, he was ready and willing to perform his part of the contract. On the other hand, the plaintiff did not perform his part of the contract. The conduct of the plaintiff in - 15 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 remaining silent for 2½ years, in not obtaining a registered sale deed by offering the balance consideration, which would show that, he was not ready and willing to perform his part of a contract. The plaintiff has failed to establish the requirements of Section 16(c) of the Specific Relief Act. The Hon’ble Apex Court in the case of R.SHAMA NAIK VS. G.SRINIVASAIAH, reported in 2024 SCC Online SC 3586 held in para Nos.9, 10, 11, and 12, which reads as under: 9. There is a legion of precedents on the subject of readiness and willingness. 10. The law is well settled. The plaintiff is obliged not only to make specific statement and averments in the plaint but is also obliged to adduce necessary oral and documentary evidence to show the availability of funds to make payment in terms of the contract in time. 11. There is a fine distinction between readiness and willingness to perform the contract. Both the ingredients are necessary for the relief of specific performance. 12. While readiness means the capacity of the plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the plaintiff. 15. The Hon’ble Apex Court held that, readiness means the capacity of the plaintiff to perform the contract, - 16 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 which includes his financial position and willingness to relate to the conduct of the plaintiff. The plaintiff has produced Ex.P9 the bank statement of PW.2. From the perusal of the passbook, on 14.10.2019, PW.2 possessed only Rs.21,26,633.78/-. Even if, that is taken into consideration, the plaintiff still, has not produced any records to establish that the plaintiff had sufficient funds for payment of the remaining amount i.e., the balance sale consideration amount, i.e., another Rs.43,00,000/-. The plaintiff has failed to establish that, the plaintiff has the financial capacity to purchase the suit schedule property, and that he was ready and willing to perform his part of the contract. The trial court was justified in dismissing the suit for specific performance of the contract. We do not find any error in the impugned judgment. Accordingly, we answer point Nos.1 and 2 in the negative. 16. Point No.3: Accordingly, we proceed to pass the following: - 17 - NC: 2025:KHC-D:1996-DB RFA No. 100202 of 2020 ORDER The appeal is dismissed. The judgment and decree dated 06.02.2020 passed in O.S.No.310/2017 by the trial Court, is hereby confirmed. No order as to the costs. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE SKS