- 1 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 18TH DAY OF SEPTEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO.100053 OF 2023 (SP-) BETWEEN: ANUPKUMAR S/O. SHANKARAPPA BIJWAD, AGE: 43 YEARS, OCC: BUSINESS, R/O. BEHIND YARADETTINAMATH, VEERAPUR ONI, HUBBALLI-580024. …APPELLANT (BY SRI. B.S. KAMATE, ADVOCATE) AND: 1. SMT. SHAMEENA SHAHEEN W/O. HAMEED KOPPAD, AGE: 54 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O. KULKARNI HAKKAL, GOODSHED ROAD, HUBBALLI-580020. 2. JAFFARSAB PACHMIYA KHAZI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. SHARAVATI NAGAR, OLD HUBBALLI-580024. …RESPONDENTS (BY SRI. M.R. MULLA, SRI. VISHWANATH S. BICHAGATTI & SRI. PARASHURAM C. SAJJANAR, ADVOCATES FOR R1; SRI. R.H. ANGADI & SRI. V.K. PATIL, ADVOCATES FOR R2) YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 02.01.2023 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE, HUBBALLI IN O.S.NO.203/2017 AND TO DISMISS THE SUIT O.S.NO.203/2017 BY ALLOWING THIS R.F.A. WITH COSTS IN THE INTEREST OF JUSTICE. THIS APPEAL IS COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal is by the defendant No.2 directed against the impugned judgment and decree dated 02.01.2023 passed by the Principal Senior Civil Judge, Hubballi in OS No.203/2017 whereby the said suit by the respondent No.1- plaintiff against the appellant-defendant No.2 and respondent No.2-defendant No.1 for specific performance - 3 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 and other reliefs in relation to the suit schedule immovable property was decreed in favour of the respondent No.1- plaitniff against the respondent No.2-defenant No.1 and appellant-defendant No.2 by the trial Court. 2. In the present appeal, the appellant-defendant No.2 prays for the following reliefs: “For the reasons stated above it is humbly prayed that after calling for the records and proceeds of the case this Hon’ble Court be pleased to set aside the impugned Judgment and Decree dated 02.01.2023 passed by Principal Senior Civil Judge, Hubballi in O.S.No.203/2017 and to dismiss the suit O.S.No.203/2017 by allowing this R.F.A. with costs in the interest of justice.” 3. For the purpose of convenience parties will be referred as per their respective ranks before the trial Court. 4. Briefly facts giving raise to the present appeal as borne out from the pleadings of the parties are as under: The defendant No.1 is the absolute owner of the suit schedule immovable landed property described in - 4 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 paragraph No.3 of the plaint. On 14.03.2005, the defendant No.1 executed an unregistered sale agreement in favour of defendant No.2 and after having received certain sum of advance towards the sale transaction, the defendant No.2 made subsequent payments during the period 2005 to 2011 to the defendant No.1 towards the sale transaction. The defendant No.2 instituted a suit in OS No.247/2014 against the defendant No.1 for specific performance of the said agreement dated 14.03.2005 and the said suit in OS No.247/2014 culminated in a compromise decree dated 23.07.2014 under which the defendant No.1 undertook to execute a sale deed in favour of defendant No.2 in pursuance of which the defendant No.1 executed a registered sale deed dated 04.05.2017 in favour of the defendant No.2 and put him in actual physical possession and enjoyment of the suit schedule property. 5. 5. Subsequently, the plaintiff instituted the present suit in OS No.203/2017 on 01.09.2017 inter alia contending that the defendant No.1 had executed a sale agreement - 5 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 dated 28.07.2007 for a total sale consideration of ₹ 20,00,000/- and had received an advance consideration of ₹ 3,00,000/- and additional payments, in the total sum of ₹ 12,00,000/- from the defendant No.1 and since the defendant No.1 did not comply with the requests and demands made by the plaintiff to execute and register the sale deed in his favour, the plaintiff instituted the present suit for specific performance of contract and for other reliefs. 6. It was contented that the plaintiff was ready and willing to perform this part of the contract and since the defendant No.1 did not come forward to execute a sale deed, the plaintiff instituted the instant suit seeking the aforesaid reliefs. 7. The defendant Nos.1 and 2 filed their separate written statement, disputing and denying the various allegations and claims made by the plaintiff. The defendant No.2 inter alia also contended that he was a bonafide purchaser for value from the defendant No.1 without notice - 6 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 of the earlier unregistered agreement said to have been executed by defendant No.1 in favour of the plaintiff. Both the defendants contended that the plaintiff was never ready and willing to perform his part of the contract and that the suit was barred by limitation and as such the suit was liable to be dismissed. 8. Based on the aforesaid pleadings, the trial Court framed the following issues and additional issue: 1. Whether plaintiff proves that defendant No.1 being a owner of suit schedule property has executed a agreement of sale on 28.07.2011 for ₹20,00,000/- by receiving advance sale consideration of ₹3,00,000/- and agreed to execute a sale deed as pleaded in the plaint? 2. Whether plaintiff proves that defendant No.1h as executed another agreement of sale on 05.12.2011 by receiving further earnest money of ₹5,00,000/- as pleaded in the plaint? 3. Whether plaintiff proves that defendant No.1 again received ₹2,50,000/- on 11.05.2012, on 11.05.2012 ₹25,000/- on 04.08.2013 and 17.09.2013 received ₹25,000/- and ₹ 1,00,000/- as pleaded in the plaint? - 7 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 4. Whether the plaintiff proves that she is always ready and willing to perform her part of contract? 5. Whether defendants prove that suit is barred by limitation? 6. Whether defendants prove that suit is not maintainable? 7. Whether defendant No.2 proves that he is a bonafide purchaser of suit property as contended in the written statement? 8. Whether plaintiff is entitled the relief as sought for? 9. What order or decree? ADDITIONAL ISSUE Whether plaintiff is entitle for refund of earnest money of ₹12,00,000/- along with interest at the rate of 18% p.a.? 9. Plaintiff examined her husband/GPA holder as PW1 and exhibits P1 to P20 were marked in his evidence, while exhibits P21 to P23 were marked by confronting the - 8 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 same to defendant No.1(DW.1) in his cross examination. The defendant No.1 examined himself as DW1 and defendant No.2 as DW2 and exhibits D1 to D7 were marked on their behalf. 10. The trial Court answered issue Nos.1 to 3 in favour of the plaintiff thereby holding issue Nos.1 and 2 in the affirmative in favour of the plaintiff and issue No.3 partly in the affirmative, thereby coming to the conclusion that as against the claim of the plaintiff that he had paid a total sum of ₹ 12,00,000/- towards advance and part of the sale consideration, the plaintiff had established that he had paid ₹ 11,00,000/- which was received by the defendant No.1 from the plaintiff. The trial Court also answered issue No.4 in the affirmative by holding that the plaintiff was always ready and willing to perform his part of the contract and that the suit was not barred by limitation and was maintainable and issue Nos.5 and 6 were answered in favour of the plaintiff. So also the trial Court answered issue No.7 against the appellant-defendant No.2 by holding that - 9 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 he was not a bonafide purchaser for value without notice of the sale agreement dated 28.07.2011 executed by defendant No.1 in favour of the plaintiff. 11. A perusal of the impugned judgment and decree will indicate that after having answered all the issues in favour of the plaintiff, the trial Court proceeded to answer issue No.8 as regards the relief to be granted in favour of the plaintiff and the additional issue as in relation to the alternative prayer for refund of earnest money of ₹ 12,00,000/- together with interest and held that since the relief of specific performance was to be granted in favour of the plaintiff, the question of granting the alternative relief of refund of the advance amount paid by the plaintiff would not arise in the facts and circumstances of the instant case. 12. Heard the learned counsel for respondent No.1 and learned counsel for respondent No.2 and perused the material on record. - 10 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 13. The points that arise for consideration of this Court are : i) Whether the trial Court was justified in passing the impugned judgment and decree granting specific performance in favour of the plaintiff against the defendants? ii) Whether the impugned judgment and decree passed by the trial Court warrants interference in the present appeal? Regarding Point No(i): 14. A perusal of the material on record including the impugned judgment and decree will indicate that on 14.03.2005, the defendant No.1 executed a sale agreement in favour of defendant No.2 by receiving advance sale consideration towards part and parcel of the sale transaction and after having paid additional amounts during the period 2005 to 2011, the defendant No.2 instituted a - 11 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 suit in OS No.247/2014 against the defendant No.1, which culminated in a compromise decree dated 23.07.2014 pursuant to which a registered sale deed dated 04.05.2017 was executed by defendant No.1 in favour of defendant No.2. In this context, it is pertinent to note that as per the terms and conditions stipulated in the sale agreement at exhibit P7 dated 28.07.2011 executed by the defendant No.1 in favour of the plaintiff, the time fixed for performance of the contract was a period of 6 months from the date of the sale agreement. 15. On 29.01.2014, the defendant No.1 got issued a notice at exhibit P13 cancelling the sale agreement executed by him in favour of the plaintiff on the ground that the plaintiff had not come forward to perform his part of the contract and had not fulfilled the obligations cast upon him in the sale agreement and called upon the plaintiff to pay the balance sale consideration of ₹8,00,000/- and get the sale deed registered within a period of 7 days, failing which the agreement would stand automatically cancelled. The - 12 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 plaintiff-respondent replied/responded to the aforesaid legal notice at exhibit P13 dated 29.01.2014 by issuing a reply at exhibit P14 dated 31.01.2014 specifically stating that the defendant No.1 had failed to subdivide the property and separate the property standing in the name of the defendant from the other co-owners and delete the bank encumbrance and thereafter to proceed for register a sale deed in favour of the plaintiff. It is an undisputed fact and a matter of record that the suit was filed more than 3 years thereafter on 01.09.2017. 16. The plaintiff has not placed any legal or acceptable material to establish that during the period from 31.01.2014 till 01.09.2017 i.e., for more than a period of 3 and half year, he did any act, deed or thing pursuant to the sale agreement or the communication between the parties for the purpose of completing the sale transaction. In fact, there is complete inaction on the part of the plaintiff from the date of the agreement dated 28.07.2011 till the date of institution of the suit. - 13 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 17. It is trite law that in order to obtain a decree for specific performance, it is incumbent upon the plaintiff to prove continuous readiness and willingness from the date of the agreement till the date of decree and even subsequently till the entire sale consideration is paid/deposited by him. It is equally well settled that willingness implies acts, deeds and things done by the plaintiff pursuant to the sale agreement, the readiness implies the capacity to pay the balance sale consideration or the proof of capacity to pay the balance sale consideration. Even according to the plaintiff, the last instalment of advance sale consideration of ₹ 50,000/- was paid by him only on 17.09.2013 and nothing was paid thereafter till the date of institution of the suit on 01.09.2017. 18. As stated supra, the defendant No.1 in his notice at exhibit P13 dated 29.01.2014 categorically stated that if the plaintiff does not come forward and pay the balance sale consideration within a period of one week from that day, the sale agreement would stand automatically - 14 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 rescinded/cancelled/revoked without any further notice. Despite the specific stance/stand of the defendant No.1, except issuing the reply dated 31.01.2014, at exhibit P14, the plaintiff does not take any steps either to institute a suit or do any other act, deed or thing including issuing any further notice so as to prove his readiness and willingness to complete the sale transaction. 19. Even before the trial Court, the plaintiff has not placed any material to prove that he had the balance sale consideration of ₹ 8,00,000/- available or he had the capacity to raise the balance sale consideration of ₹ 8,00,000/- so as to establish his readiness to complete the sale transaction in terms of Section 16(c) of the Specific Relief Act. Similarly, the complete inaction on the part of the plaintiff in remaining silent at least from 31.01.2014 up to 02.09.2017 is also point to be noticed that the plaintiff had not established his continuous willingness to perform his part of the contract as mandatorily required under Section 16(c) of the Specific Relief Act. - 15 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 20. Under these circumstances, we are of the considered opinion that the trial Court completely misdirected itself in recording the erroneous finding that the plaintiff was ever ready and willing to perform this part of the contract, without noticing the aforesaid aspects borne from the material on record and consequently the said finding recorded by the trial Court on issue No.4 deserves to be set aside by holding that the plaintiff was never ready and willing to perform his part of the contract. 21. A perusal of the impugned judgment and decree would indicate that the trial Court has come to the conclusion that the defendant No.1 had not obtained the 11E sketch which was required for the purpose of execution of the registered sale deed in favour of the plaintiff and the trial Court infers that non-obtaining/production of the 11E sketch indicates that the plaintiff was ready and willing to perform his part of the contract. In this context, the trial Court failed to consider and appreciate the well settled position of law qua principles contained in Section 16(c) of - 16 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 the Specific Relief Act which contemplates that the burden of proving readiness and willingness rested heavily upon the plaintiff and irrespective of the defence, non-defence of the defendant had no nexus or connection whatsoever with the burden of proving continuous readiness and willingness to perform his part of the contract as statutorily mandatory under Section 16(c) of the Specific Relief Act and consequently the said finding recorded by the trial Court deserves to be set aside on this ground also. 22. 22. In view of the aforesaid factual circumstances, we are of the considered opinion that the trial Court clearly fell in error in granting a decree for the suit performance in favour of the plaintiff against the defendants by passing the impugned judgment and decree, which deserves to be set aside. At this juncture, it is relevant to state that in view of our finding that the plaintiff had failed to establish his readiness and willingness in performing his part of the contract, there is no necessity to render/accord any findings on issue Nos.5 and 6 urged by the defendants. Point No.(i) - 17 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 is accordingly answered in favour of the appellant- defendant No.2 and against the respondent No.1-plaintiff. Regarding point No.(ii): 23. While dealing with point No.(i), we have come to the conclusion that the trial Court committed an error in granting a decree for specific performance in favour of the plaintiff against the defendants. As noticed herein before, having granted a decree for specific performance, the trial Court deemed it fit not to answer additional issue No.1 relating to refund of advance money. However, having set aside the finding of the trial Court and the impugned judgment and decree granting specific performance in favour of the plaintiff, it would be necessary to adjudicate the additional issue arising out of the alternative prayer for refund of the advance amount together with interest as sought for by the plaintiff. 24. However since, the trial Court did not record any finding in this regard as can be seen from paragraph No.25 - 18 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 of the impugned judgment and decree, though several contentions have been urged by both sides in support of their respective claims, without expressing any opinion on the merits/demerits of the rival contentions, we deem it just and appropriate to set aside the finding recorded by the trial Court on additional issue No.1 and remit the matter back to the trial Court to the limited extent of adjudicating the alternative prayer for refund together with interest sought for by the plaintiff and additional issue No.1 framed by the trial Court in this regard by issuing necessary directions to the trial Court. Point No.(ii) is accordingly anwered. 25. In the result the following: ORDER (i) The appeal is hereby partly allowed. (ii) The impugned judgment and decree insofar as it grants the decree for relief of specific performance in favour of the respondent No.1- plaintiff against the appellant-defendant No.2 - 19 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 and respondent No.2-defendant No.1 is hereby set aside. So also the finding recorded by the trial Court on alternative prayer for refund together with interest and the consequent additional issue No.1 is hereby set aside. (iii) The suit of the plaintiff insofar as relief of specific performance is hereby dismissed / rejected. (iv) The matter is remitted back to the trial Court for the limited/restricted purpose of adjudicating upon the alternative prayer for refund together with interest and additional issue No.1 for reconsideration afresh in this regard. (v) The appellant and respondents are directed to appear before the trial Court on 27.10.2025, without awaiting further notice from the trial Court. - 20 - HC-KAR NC: 2025:KHC-D:12589-DB RFA No.100053 of 2023 (vi) All rival contentions between the plaintiff and defendants, only in relation to the question/issue of alternative prayer for refund of advance amount sought for by the plaintiff and additional issue No.1 are kept open and no opinion is expressed on the merits/demerits of the rival contentions. (vii) The Registry is directed to refund the entire Court fee paid on the memorandum of appeal to the appellant. (viii) Registry shall transmit the records of the trial Court to the trial Court forthwith. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE HMB CT-MCK List No.: 1 Sl No.: 24