- 1 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100402 OF 2018 (SP-) BETWEEN: DEEPAK VINAYAKANT PATIL AGE: 40 YEARS, OCC: AGRICULTURE & PRIVATE TRADE, R/O: LOKAPUR, TQ: MUDHOL. …APPELLANT (BY SRI. S.B HEBBALLI, ADV) AND: 1. MAHADEVI W/O NAGANAGOUDA PATIL AGE: 45 YEARS, OCC: HOUSEHOLD WORK, AND AGRICULTURE, R/O: WANGAGER, TQ: BAGALKOTE. SINCE DECEASED BY HER LR’S., ALREADY ON RECORD AS R2 TO R5) 2. HANAMANTAGOUDA S/O NAGANAGOUDA PATIL AGE: 22 YEARS, OCC: AGRICULTURE, R/O: YANDIGERI, TQ: BAGALKOT. 3. SHANTAGOUDA S/O NAGANAGOUDA PATIL AGE: 18 YEARS, OCC: AGRICULTURE, R/O: YANDIGIRI, TQ: BAGALKOT. 4. GIRIYAPPAGOUDA S/O NAGANAGOUDA PATIL AGE: 16 YEARS, MINOR BY GUARDIAN MOTHER R1(A) MAHADEVI. 5. RUDRAMMA D/O NAGANAGOUDA PATIL AGE: 14 YEARS, IS MINOR REP BY MINOR GUARDIAN MOTHER R1(A) MAHADEVI. …RESPONDENTS (R1-DECEASED NOTICE TO R3 IS SERVED NOTICE TO R2, R4 & R5 ARE HELD SUFFICIENT) MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.16 12:15:08 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 THIS RFA IS FILED U/SEC. 96 OF CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED 27.06.2018 PASSED IN O.S.NO.75/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BADAMI, DISMISSING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACT. 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 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 27.06.2018 passed in O.S.No.75/2014 by the learned Senior Civil Judge and JMFC, Badami. 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 Regular First Appeal are as follows: The plaintiff filed a suit against the original defendant for specific performance of a contract. It is the case of the - 3 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 plaintiff that the original defendant is the owner of land bearing R.S.No.134/1, measuring 8 acres, situated at Yandigeri village of Badami Taluk. The defendant, to repay the bank loan, offered to sell the suit schedule property to the plaintiff, for a consideration of Rs.15,00,000/- and accordingly, the plaintiff paid a sum of Rs.11,00,000/- as advance sale consideration to the defendant and the defendant executed a registered sale agreement on 01.07.2005. It was agreed that the defendant has to execute the registered sale deed on the demand made by the plaintiff, after clearing all the encumbrances of the bank on the said land. The possession of the suit land is to be delivered at the time of registration of the sale deed. From January 2012, the plaintiff requested the defendant to receive the balance sale consideration amount and execute a registered sale deed. The defendant did not give any heed to the request made by the plaintiff. The plaintiff, having fed up for the delayed attitude of the defendant, got issued a legal notice - 4 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 on 30.08.2014, calling upon the defendant to receive the balance consideration amount and execute the registered sale deed. The defendant received the notice, but did not reply to the legal notice. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract. Accordingly, he prayed to decree the suit. 4. Summons were issued to the original defendant. It was reported that the original defendant is dead. Later on, the plaintiff, took steps against the deceased defendant and his legal representatives were brought on record as defendants No.1(a) to (e). The legal representatives did not contest the suit. As defendants No.1(d) and (e) were minors, a Court guardian was appointed and the Court guardian of defendants No.1(d) and 1(e) filed a written statement, denying the averments made in the plaint. 5. The trial Court, based on the pleadings of the parties, framed the following issues: - 5 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 1. Whether the plaintiff proves that the original defendant executed an agreement of sale in respect of suit property on 01.07.2005 by receiving an advance sale consideration of Rs.1,00,000/-? 2. Whether the plaintiff proves that he is ever ready and willing to perform his part of contract? 3. Whether plaintiff is entitled for the relief of Specific Performance of contract as prayed for? 4. Whether the plaintiff is entitled for the relief prayed for? 5. What order or decree? 6. The plaintiff, to substantiate his case, examined himself as PW-1, one witness as PW-2 and marked documents as Exs.P-1 to P-6. In rebuttal, no evidence was led by the defendants No.1(d) and 1(e). 7. The trial Court, after recording the evidence, hearing both sides, and after assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue Nos.2 to 4 in the negative and issue - 6 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 27.06.2018. The plaintiff, aggrieved by the judgment and decree dated 27.06.2018 passed in O.S.No.75/2014, filed this Regular First Appeal. 8. Notice was issued to the respondents. Despite service of notice, the legal representatives of the original defendants remained unrepresented. 9. Heard the argument of the learned counsel for the plaintiff. 10. Learned counsel for the plaintiff submits that when the trial Court has answered issue No.1 in the affirmative, holding that the plaintiff has proved the execution of the sale agreement, it ought to have decreed the suit for specific performance. On the contrary, the trial Court dismissed the suit for specific performance of a contract. He submits that at least the trial Court could have granted alternative relief of refund of amount, but the trial Court refused to grant the alternative relief of - 7 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 refund of amount on the ground that the plaintiff had not sought the alternative relief. He submits that during the pendency of this appeal, the plaintiff filed an application to amend the plaint and the same was allowed and he inserted the prayer for the alternative relief of refund of the amount. Hence, on these grounds, he submits that the appeal may be allowed and an alternative prayer for refund of the amount may be granted. 11. Perused the records and considered the submissions of the learned counsel for the plaintiff. 12. The points that would arise for consideration are: 1) Whether the plaintiff proves that the defendant executed the registered sale agreement in favour of the plaintiff on 01.07.2005 by receiving an advance sale consideration of Rs.11,00,000/-? 2) Whether the plaintiff proves that he is entitled for alternative relief of refund of amount? - 8 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 3) Whether the plaintiff proves that the judgment and decree passed by the trial Court is perverse and arbitrary? REG. POINT NO.1: 13. The plaintiff filed a suit against the original defendant for specific performance of a contract. The plaintiff, to substantiate his case, examined himself as PW- 1 and deposed that the original defendant is the absolute owner of the suit schedule property. To clear the bank debts, he offered him to sell the suit schedule property for a consideration of Rs.15,00,000/- and the plaintiff agreed to purchase the suit schedule property for a consideration of Rs.15,00,000/- and paid an advance consideration amount of Rs.11,00,000/-. The original defendant, after receipt of Rs.11,00,000/-, executed a registered sale agreement on 01.07.2005 and time was not the essence of the contract. It is contended that the possession was to be delivered at the time of execution of the registered sale deed. From January 2012, the plaintiff demanded the - 9 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 original defendant to receive the balance sale consideration and to execute a registered sale deed, but the original defendant went on postponing the same and the plaintiff issued a legal notice on 30.08.2014, calling upon the defendant to receive the balance consideration amount and execute a registered sale deed. The legal notice was served to the original defendant. Despite the service of legal notice, the original defendant neither performed his part of obligation nor replied to the legal notice. 14. Though the legal representatives of the deceased defendant were brought on record as defendants No.1(a) to (e), they were placed exparte and minor defendants No.1(d) and 1(e) were represented by a counsel i.e., the Court guardian, who filed a written statement, denying the averments made in the plaint. 15. Plaintiff, to substantiate that the original defendant executed a sale agreement, produced a copy of - 10 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 the registered sale agreement dated 01.07.2005 marked as Ex.P-2, which discloses that the defendant had executed a sale agreement in favour of the plaintiff by receiving an advance sale consideration amount of Rs.11,00,000/- from the plaintiff. Plaintiff has also produced copies of the legal notices issued by him on 05.01.2012 and on 30.08.2014, marked as Exs.P-3 and P- 4. 16. In view of the discussion, I answer the point No.1 in the affirmative. REG. POINT NO.2: 17. Though the plaintiff has filed the suit, merely for the specific performance of a contract, without seeking alternative relief of refund of amount, the plaintiff has filed an application before this Court for amendment of the plaint. This Court vide order dated 27.11.2024, allowed the application and permitted the plaintiff to amend the - 11 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 plaint and to incorporate the additional prayer for refund of the amount. 18. Admittedly, the agreement was executed on 01.07.2005 and the plaintiff did not perform his part of the contract within a reasonable time. Though the time is not the essence of the contract, the plaintiff ought to have performed his part of contract within a reasonable time. The plaintiff got issued a legal notice after 7 years from the date of execution of the sale agreement, as per Ex.P-3 dated 05.01.2012 and after issuing legal notice as per Ex.P-3, again the plaintiff kept quite for more than 2 years and issued one more legal notice on 30.08.2014 as per Ex.P-4 and subsequently, the plaintiff filed a suit on 03.12.2014. 19. From the perusal of the records, it clearly discloses that the plaintiff was not willing to perform his part of the contract. The trial Court has rightly recorded the finding that the plaintiff has failed to prove that he - 12 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 was/is always ready and willing to perform his part of the contract. 20. Admittedly, the suit filed by the plaintiff is barred by limitation. Though the plaintiff is seeking refund, when the suit of the plaintiff is barred by time, the question of granting an alternative relief of refund would not arise. 21. In view of the above discussion, I answer point No.2 in the negative. REG. POINT NO.3: 22. Though the legal representatives of the deceased defendant did not contest the suit, however the trial Court, considering the entire evidence on record, has rightly held that the plaintiff has failed to prove that he was/he is always ready and willing to perform his part of the contract. The plaintiff has failed to fulfill the requirements of Section 16(C) of the Specific Relief Act. Granting the relief of specific performance is a - 13 - HC-KAR NC: 2025:KHC-D:9534 RFA No. 100402 of 2018 discretionary under Section 20 of the Specific Relief Act. The trial Court has rightly dismissed the suit on the grounds that the suit filed by the plaintiff is barred by limitation. I do not find any error in the impugned judgment. Accordingly, I answer point No.3 in the negative, and I proceed to pass the following: ORDER (i) Regular First Appeal is dismissed. (ii) The judgment and decree dated 27.06.2018 passed in O.S.No.75/2014 by the learned Senior Civil Judge and JMFC, Badami is confirmed. (iii) No order as to costs. In view of the dismissal of the appeal, pending IA’s if any, do not survive for consideration, accordingly, disposed of. Sd/- (ASHOK S. KINAGI) JUDGE NAA CT: BSB List No.: 1 Sl No.: 16