- 1 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100257 OF 2015 (SP/DE/IN-) BETWEEN: G.K. SOLOMAN AGE: 66 YEARS, OCC: RETD PRINCIPAL R/O: KRUPA NAGAR, MANTUR ROAD HUBBALLI, DIST: DHARWAD-580020. …APPELLANT (BY SRIYUTHS. ARUN L NEELOPANT AND SHRIHARSH A. NEELOPANT, ADVS) AND: 1. SMT. RANIBAI W/O DUNGARCHAND OSWAL JAIN AGE: 69 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: J.C. NAGAR, STATION ROAD, HUBBALLI, DIST: DHARWAD-580020. 2. K. BARNABAS S/O K. ISREAL AGE: 64 YEARS, OCC: DEVELOPER AND BUSINESS, R/O: H. NO: 222, AMBEDKAR COLONY, MANTUR ROAD, HUBBALLI, DIST: DHARWAD-580020. 3. AMEENABI W/O IMAM HUSSAIN KHAIRATI AGE: 56 YEARS, OCC: HOUSEHOLD WORK R/O: BINDARI ONI, GANESH PETH HUBBALLI, DIST: DHARWAD-580020. 4. YUSUF S/O IMAM HUSSAIN KHAIRATI AGE: 36 YEARS, OCC: BUSINESS R/O: BINDARI ONI, GANESH PETH HUBBALLI, DIST: DHARWAD-580020. 5. SHABBEERAHAMMAD IMAM HUSSAIN KHAIRATI AGE: 34 YEARS, OCC: BUSINESS R/O: BINDARI ONI, GANESH PETH HUBBALLI, DIST: DHARWAD-580020. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.16 12:12:54 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 6. SABANABANU D/O IMAM HUSSAIN KHAIRATI AGE: 38 YEARS, OCC: HOUSEHOLD WORK R/O: BINDARI ONI, GANESH PETH HUBBALLI, DIST: DHARWAD-580020. 7. RESHAMABANU D/O IMAM HUSSAIN KHAIRATI AGE: 33 YEARS, OCC: HOUSEHOLD WORK R/O: BINDARI ONI, GANESH PETH HUBBALLI, DIST: DHARWAD-580020. 8. ABDULRASHEED S/O DAWOODSAHEB TINMAKER AGE: 65 YEARS, OCC: RETIRED R/O: HAYAT MANZIL, NEAR JOSHI HOSPITAL 2ND CROSS, AYODHYA NAGAR, OLD HUBBALLI, HUBBALLI, DIST: DHARWAD-580020. 9. A. VENKATESH S/O A. RAMACHANDRAPPA AGE: 58 YEARS, OCC: AGRICULTURE & BUSINESS PARTNER MOTHER THERESA REAL ESTATE DEVELOPERS, HUBBALLI R/O: PRIYADARSHINI COLONY, GOKUL ROAD, HUBBALLI, DIST: DHARWAD-580020. …RESPONDENTS (BY SRI. SADASHIV S. PATIL, ADV FOR R2, NOTICE TO R1, R8 & R9 ARE SERVED NOTICE TO R3 TO R7 ARE HELD SUFFICIENT) RFA FILED UNDER SEC. 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.08.2015 PASSED IN O.S.NO.314/2011 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, HUBBALLI, DISMISSING THE SUIT FILED FOR SPECIFIC PERFORMANCE PERMANENT INJUNCTION AND DECLARATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI - 3 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and decree dated 29.08.2015 passed in O.S.No.314/2011 by the learned II Additional Senior Civil Judge, Hubballi. 2. For convenience, the parties are referred to, based on their rankings 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 the suit against the defendants for the relief of specific performance of a contract and permanent injunction. It is the case of the plaintiff that defendant No.1 is the absolute owner of the suit schedule property, and she agreed to sell the suit schedule property for a sale consideration amount of Rs.13,11,000/-, and - 4 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 sale agreement was registered on 30.03.2009 and out of consideration amount, the plaintiff paid a sum of Rs.6,00,000/- which was given through the cheque, and cash, Rs.4,00,000/- and Rs.3,00,000/- were given through cheques dated 25.03.2009 and 28.05.2009, respectively. The balance sale consideration amount is Rs.11,000/- only and it was agreed that the balance sale consideration amount would be paid at the time of execution of the registered sale deed. It is contended that the plaintiff requested defendant No.1 to receive the balance sale consideration amount, and execute the registered sale deed. Defendant No.1 did not give any heed to the request made by the plaintiff. Defendant No.1 executed the GPA in favour of defendant No.2 with an intension to avoid her legal obligations to execute the sale deed. The plaintiff, to show that he is/was always ready and willing to perform his part of the contract, issued a legal notice dated 06.12.2009 calling upon defendant No.1 & 2 to receive the balance sale consideration amount, and execute a - 5 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 registered sale deed. Defendant No.2 evasively replied to the legal notice and has not complied with the demands made by the plaintiff in the legal notice. Hence, a cause of action arose for the plaintiff to file the suit for the relief of specific performance of the contract. Accordingly, he prays to decree the suit. 4. Defendant Nos.1 and 2 appeared through their counsel. Defendant No.2 filed a written statement contending that the suit filed by the plaintiff is not maintainable. Defendant No.2 admitted regarding the execution of the sale agreement between the plaintiff and defendant Nos.3 to 5 on 05.03.2009 registered on 30.03.2009. It is admitted that defendant No.1 is the GPA holder of defendant No.2. It is contended that the plaintiff has not contributed any amount towards the sale consideration amount. It is contended that defendant No.2 had sold 34 sites out of 35 sites formed in the suit schedule property, as permitted by the plaintiff and defendant Nos.3 to 5. The plaintiff was a signatory to the - 6 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 registered sale deeds executed on 25.08.2009. The plaintiff is aware of all the transaction which was plan from the date of sale agreements. It is contended that defendant No.2 paid a sum of Rs.9,00,000/- through cheque and Rs.4,00,000/- by cash as instructed by defendant Nos.3 to 5 to defendant No.1. Hence, he prays to dismiss the suit against defendant No.2. 5. Defendant No.1 filed a memo adopting a written statement filed by defendant No.2. 6. The Plaintiff filed a rejoinder to the written statement filed by defendant No.2, denying the averments made in the written statement. 7. Defendant No.2 filed an additional written statement denying the contents of the rejoinder dated 04.04.2015. It is also denied that the GPA is executed in favour of defendant No.2 by defendant No.1 to dupe the plaintiff and defendant Nos.3 to 5, who have invested the entire consideration amount. The plaintiff has not paid - 7 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 alleged advance sale consideration as contended in the agreement of sale dated 30.03.2009. It is denied that, the plaintiff has invested Rs.10,00,000/- and defendant Nos.3 to 5 have invested Rs.1,00,000/-each. Hence, he prays to dismiss the suit. 8. The trial Court, based on the pleadings of the parties, framed the issues and additional issues as follows: (1) Whether the plaintiff proves that on 30-3-2009 defendant No.1 executed an agreement of sale agreeing to sell the suit property in his favour and in favour of defendants 3 to 5 for a sale consideration of Rs. 13,11,000/- by receiving earnest money of Rs.13,00,000/- on different dates through cheque and through cash as contended in para-3 of the plaint? (2) Whether the plaintiff proves that he is always ready and willing to perform his part of contract? (3) Whether the plaintiff proves that defendant No.1 is making an illegal attempt to alienate the suit property to third party and he is illegally making an attempt to carry out the developmental activities in the suit property? (4) Whether the plaintiff is entitle for specific performance of contract as prayed in the suit? (5) Whether the plaintiff is entitle for alternative relief as prayed in the suit? (6) Whether the plaintiff is entitle for permanent injunction as prayed in the suit? - 8 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 (7) What order or decree? ADDITIONAL ISSUE: (1) Whether the plaintiff proves that he has paid Rs. 13,00,000/-to defendant No.2 as suggested by defendant No.1 towards sale consideration as contended in para-3 of rejoinder? 9. To substantiate the plaintiff’s case, the plaintiff examined himself as P.W.1, and marked 3 documents as Exs.P1 to Ex.P3. In rebuttal, defendant No.2 was examined as D.W.1, examined one witness as D.W.2, and marked 12 documents as Ex.D1 to D12. 10. The trial court, after hearing both sides and on assessing the verbal and documentary evidence, answered issue No.1 holding that the plaintiff succeeded in proving the execution of the agreement of sale, but the plaintiff miserably failed to prove that he contributed a sum of Rs.10,00,000/-. Issue No.2 does not survive for consideration. Issue Nos.3 to 6, and additional issue in the negative, and issue No.7 as per the final order. The suit of the plaintiff was dismissed vide judgment and decree dated 29.08.2015. - 9 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 11. The plaintiff, aggrieved by dismissal of the suit in O.S.No.314/2011, filed this Regular First Appeal. 12. Heard the arguments of the learned counsel for the plaintiff and learned counsel for defendant No.2. 13. Learned counsel for the plaintiff submits that defendant No.1 executed the registered sale agreement in favour of the plaintiff, and there is a recital in the agreement of sale regarding payment of the advance sale consideration amount. Defendant Nos.1 and 2 admitted the execution of an agreement of sale. When there is a recital in the agreement of sale regarding payment of the advance sale consideration amount, the trial court has failed to appreciate the said fact, and also failed to consider Section 92 of the Indian Evidence Act, 1882. He submits that any amount of oral evidence to contradict, vary, add to, or subtract is inadmissible in evidence. He submits that through the trial court has recorded its finding that the plaintiff has proved the execution of the - 10 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 agreement of sale, it should have granted the relief of specific performance of the contract or in the alternative, refund of an earnest money. He submits that the trial court committed an error in dismissing the suit in its entirety. He submits that the judgment and decree passed by the trial court is arbitrary, erroneous, and perverse. Hence, on these grounds, he prays to allow the appeal. 14. Per contra, learned counsel for defendant No.2 submits that the plaintiff has not paid the advance sale consideration amount, and it was paid by defendant No.2. He also submits that defendant No.2 had sold 34 sites out of 35 sites, and the plaintiff was a signatory to the registered sale deeds. He submits that defendant No.2 has produced registered sale deeds marked as Exs.D1 to D10. He submits that the plaintiff is estopped from claiming the relief of a specific relief of the contract, as he is a signatory to the registered sale deeds executed by defendant No.2 in favour of the purchasers. He submits - 11 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 that the trial court has rightly dismissed the suit. Hence, on these grounds, he prays to dismiss the appeal. 15. Perused the records, and considered the submissions of the learned counsel for the parties. 16. The points, that would arise for my consideration, are as follows ; 1) Whether the plaintiff proves that defendant No.1 executed registered sale agreement on 30.03.2009 and accordingly, plaintiff had paid a sum of Rs.13,00,000/- towards advance sale consideration amount? 2) Whether the plaintiff proves that he is/was always ready and willing to perform his part of the contract? 3) Whether the plaintiff is entitled for the alternative relief of refund of earnest money? 4) What order or decree? Point No.1. 17. The plaintiff, to substantiate his case, examined himself as P.W.1. He deposed that defendant No.1 is the - 12 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 owner of the suit schedule property. He agreed to sell the suit schedule property for a consideration amount of Rs.13,11,000/- and accordingly, the plaintiff paid a sum of Rs.13,00,000/- towards the advance sale consideration amount on different dates. The plaintiff requested defendant No.1 to receive the balance sale consideration amount, and execute the registered sale deed. Defendant No.1 did not give any heed to the request made by the plaintiff. The plaintiff, being fed up with the delaying attitude of defendant No.1, issued a legal notice, calling upon defendant No.1 & 2. to receive the balance sale consideration amount, and execute the registered sale deed. A Notice was served to defendant No.1. However, defendant No.1 evasively replied to the legal notice and has not performed his obligation. The plaintiff, to prove the execution of the registered sale agreement, produced a certified copy of the registered sale agreement marked as Ex.P1. Ex.P2 is the record of rights which discloses that the suit schedule property stands in the name of - 13 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 defendant No.1. Ex.P3 is a copy of the legal notice issued by the plaintiff to defendant No.1 & 2 calling upon defendant No.1 & 2 to receive the balance sale consideration amount, and execute the registered sale deed. 18. There is no dispute regarding the execution of the registered sale agreement by defendant No.1 in favour of the plaintiff. Further, defendant No.2 has taken up a plea that the entire advance sale consideration amount was paid by defendant No.2, but not by the plaintiff. Defendant No.2, to substantiate his defence, examined himself as D.W.1. He admits regarding the execution of the agreement of sale by defendant No.1 in favour of the plaintiff. He deposed that he paid the entire advance sale consideration amount, but not the plaintiff. He also examined one witness as D.W.2, who deposed in the same terms of D.W.1. Further, defendant No.2 produced a certified copies of the registered sale deeds marked as Exs.D1 to D10, which discloses that defendant No.2 has - 14 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 sold 34 sites out of 35 sites in favour of the different purchasers and the plaintiff has affixed his signature as an attesting witness to the registered sale deeds. The plaintiff was well aware of the execution of the registered sale deeds at Exs.D1 to D3, D5, D9 and D10. Ex.D11 is the statement of accounts of Mother Teresa Real Estate Developers. Ex.D12 is a copy of the reply notice issued by defendant No.2. 19. From the perusal of the entire evidence on record, there is no dispute regarding execution of Ex.P1 by defendant No.1. From the perusal of the recital in Ex.P1, it discloses that the plaintiff had paid the entire sale consideration amount to defendant No.1. Further, defendant No.2 in para 2 of the written statement also admitted regarding execution of the agreement of sale between the plaintiff, defendant No.1 and defendant Nos.3 to 5. As per Section 58 of the Indian Evidence Act, 1882, the fact admitted need not be proved. Defendant No.2 contradicts, varies, adds to, or subtracts from the terms of - 15 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 Ex.P1 by contending that defendant No.2 has paid the entire advance sale consideration amount. To consider the defence of defendant No.2, it is necessary to examine Section 92 of the Evidence Act, which reads as follows: “92. Exclusion of evidence of oral agreement. – When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.” 20. Admittedly, Ex.P1 is the registered instrument, and defendant No.2 is trying to contradict or subtract from its terms, which is not permissible under Section 92 of the Indian Evidence Act, 1882. The plaintiff has proved the execution of the agreement of sale, and also payment of advance sale consideration amount of Rs.13,00,000/-. In view of the above discussion, point No.1 is answered in the affirmative. - 16 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 Point No.2. 21. There is no dispute regarding the execution of the agreement of sale, and the payment of the advance sale consideration amount of Rs.13,00,000/-. As per the terms and conditions of the agreement of sale, the sale transaction is to be concluded within one year. Admittedly, the plaintiff got issued a legal notice calling upon defendant No.1 & 2 to receive the balance sale consideration amount and execute the registered sale deed. The legal notice was issued on 08.12.2009, and the suit was filed in 2011. Even from the date of issuing the legal notice, the plaintiff has not placed any record to show that the plaintiff had sufficient funds for the payment of the balance sale consideration amount. The plaintiff did not perform his part of the contract within the stipulated period. Thus, the plaintiff has failed to prove that he is/was always ready and willing to perform his part of the contract. The trial court was justified in recording a finding that the plaintiff has failed to prove that he is/was always - 17 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 ready, and willing to perform his part of the contract. In view of the above discussion, point No.2 is answered in the negative. Point No.3. 22. Defendant No.2 sold 34 sites out of 35 sites, for which the plaintiff was the attesting witness to the registered sale deeds, which are marked as Exs.D1 to D3, D5, D9, and D10. The plaintiff is well aware that defendant No.2 has sold a substantial portion of the suit schedule property. The plaintiff has not taken any steps to challenge the registered sale deeds. The purchasers are put in possession of the suit schedule property. In view of the subsequent developments regarding the sale deeds executed by defendant No.2 in favour of the different purchasers and the plaintiff being the attesting witness to Exs.D1 to D3, D5, D9 and D10, the plaintiff is not entitled to the relief of a specific performance of the contract. It is settled law that granting a relief of specific performance of contract is discretionary relief. The court can grant specific - 18 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 performance, they are not obligated to do so merely because it is legally permissible. The discretion must be exercised soundly, reasonably and guided by judicial principles. If the relief of specific performance of the contract is granted to the plaintiff, defendant No.2, and the purchasers will be put to hardship. Therefore, the plaintiff can be compensated in terms of money by passing a decree of refund of the advance sale consideration amount. In view of the above discussion, point No.3 is answered in the affirmative. Point No.4. 23. In view of the discussion made on point Nos.1 to 3, I hold that the judgment and decree passed by the trial court is arbitrary, perverse, and erroneous. The trial Court ought to have granted the alternative relief of refund of the earnest money, and committed an error in dismissing the suit in its entirety. Accordingly, I proceed to pass the following; - 19 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 ORDER i) The Regular First Appeal is allowed in part. ii) The judgment and decree dated 29.08.2015 passed in O.S.No.314/2011 by the learned II Additional Senior Civil Judge at Hubballi is hereby set aside, and the suit of the plaintiff is partly decreed. iii) The plaintiff is entitled to the alternative relief of refund of earnest money of Rs.13,00,000/- with interest at the rate of 6% p.a. from the date of filing of the suit till realisation of the amount. iv) Defendant Nos.1 and 2 are directed to pay the amount of Rs.13,00,000/- along with interest at the rate of 6% p.a. to the plaintiff within eight weeks from the date of receipt of a copy of this Judgment. - 20 - HC-KAR NC: 2025:KHC-D:9310 RFA No. 100257 of 2015 v) In default of payment of earnest money, the plaintiff is entitled to recover the said amount by due process of law. vi) No order as to the costs. In view of the disposal of the appeal, pending I.A’s, if any, do not survive for consideration, and accordingly, disposed of. Sd/- (ASHOK S. KINAGI) JUDGE MBS CT: BSB List No.: 1 Sl No.: 3