- 1 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100680 OF 2019 (SP-) BETWEEN: RAVSAB S/O. RAMANAGOUDA PATIL, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: SANAL, TQ: JAMKHANDI, DIST: BAGALKOTE-587301. ...APPELLANT (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE) AND: 1. SHARAD S/O. GOVIND KULKARNI, AGE: 61 YEARS, OCC: AGRICULTURE, R/O: MARIGUDDI, TQ: JAMKHANDI, NOW R/AT NEAR JAMBUKESHWAR TEMPLE, JAMKHANDI, DIST: BAGALKOTE-587301. AMENDMENT CARRIED OUT AS PER COURT ORDER DATED 15.07.2024 SINCE DECEASED BY HIS LR’S. 1A. SHRINIVAS S/O. SHARAD KULKARNI, AGE: 35 YEARS, OCC: PRIVATE JOB, R/O. MAREGUDDI, AT PRESENT RESIDING AT JAMAKHANDI-587301, TQ: JAMAKHANDI, DIST: BAGALKOT. 1B. SMT. PREETI W/O. RAGHUNANDAN KULKARNI, AGE: 32 YEARS, OCC: HOUSEWIFE, R/O. ANAGOL, BELAGAVI-590 006, TQ & DIST: BELAGAVI. SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 2. ADIVEPPA S/O. PARASAPPA KONKANI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: SIDDAPUR, TQ: JAMKHANDI, DIST: BAGALKOTE-587301. …RESPONDENTS (BY SRI. S.S. YADRAMI, SR. COUNSEL FOR SRI. GIRISH V. BHAT, ADVOCATE FOR R1 (A & B); R2-SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE 1908 PRAYING TO ALLOW THIS REGULAR SECOND APPEAL, SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 27.06.2019 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT TO SIT AT JAMKHANDI AT. JAMKHANDI IN R.A.NO.92/2017 AND CONFIRM THE JUDGMENT AND DECREE DATED 19.06.2017 PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, JAMKHANDI IN O.S.NO.351/2006, IN THE INTERESTS OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 21ST APRIL 2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH CAV JUDGMENT 1. This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 27.06.2019 passed in RA No.92 of 2017 on the file of the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, (for short, ‘First Appellate Court’) allowing - 3 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 the appeal in part and setting aside the judgment and decree dated 19.06.2017 passed in OS No.351 of 2006 on the file of the Principal Senior Civil Judge, Jamakhandi, (for short,’ Trial Court’), decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that the defendant No.1 is the owner of the suit schedule property and intend to sell the same in favour of plaintiff for total consideration of Rs.2,80,000/- as per the Agreement of Sale dated 04.07.2002 and in this regard, the plaintiff has paid Rs.1,30,000/- as advance to the defendant No.1 and the Agreement of Sale was registered on 05.07.2002. It is also stated that, the defendant No.1 has to clear the encumbrance, if any, in respect of suit schedule property and the plaintiff has to pay the balance consideration amount of Rs.150000/- to the defendant No.1, on or before 04.07.2004 and thereby, the defendant No.1 - 4 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 agreed to execute the registered Sale Deed. It is also stated that, the plaintiff is ready and willing to perform his part of the contract and as such, approached the defendant No.1 to execute the registered Sale Deed by receiving the balance consideration. The defendant No.1 was prolonging the execution of the registered Sale Deed and as such, the plaintiff caused legal notice dated 01.07.2004 calling upon the defendant No.1, to execute the registered Sale Deed. The defendant No.1, did not reply to the same, however, sought further time to execute the registered Sale Deed on account of ill-health and as such, the plaintiff and defendant No.1 entered into a supplementary agreement dated 24.01.2006 and as such, the defendant No.1 received additional advance amount of Rs.58,000/-. The supplementary agreement was registered on 25.01.2006 and the defendant No.1 agreed to execute the registered Sale Deed on or before 31.08.2006. It is the case of the plaintiff that defendant No.1 was delaying in execution of the registered Sale Deed for flimsy grounds and as such, the plaintiff caused legal - 5 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 notice dated 25.08.2006 to the defendant No.1 and the defendant No.1 has not replied to the same and as such, the plaintiff filed OS No.351 of 2006, seeking relief of specific performance of contract. During the pendency of the suit, the defendant No.2 was impleaded, wherein, the defendant No.1 entered into registered Agreement of Sale with defendant No.2 to sell the suit schedule property. 4. After service of summons, the defendant No.1 entered appearance and filed detailed written statement denying the averments made in the plaint. Defendant No.2 remained absent and placed ex-parte. It is the specific case of the defendant No.1 that, the defendant No.1 has not entered into any agreement of sale with plaintiff as stated in the plaint. The defendant No.1 denied the averments made in the plaint insofar as receiving advance amount in terms of the registered Agreement of Sale referred to above and accordingly, sought for dismissal of the suit. - 6 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 6. In order to establish their case, the plaintiff has examined four witnesses as PW1 to PW4 and got marked 15 documents as Exs.P1 to P15. On the other hand, defendants have examined two witnesses as DW1 and DW2 and have not produced any documents. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 19.06.2017 decreed the suit of the plaintiff and being aggrieved by the same, the defendant No.1 has preferred Regular Appeal in RA No.92 of 2017 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 27.06.2019 allowed the appeal in part and set aside the judgment and decree passed by the Trial Court in OS No.351 of 2006. Being aggrieved by the same, the appellant/plaintiff has - 7 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 preferred this Regular Second Appeal under Section 100 of CPC. 8. This court vide order 03.07.2020 formulated the following substantial questions of law for its consideration. “a) Whether the judgment and decree of the First Appellate Court in reversing the judgment and decree of the Trial Court granting specific performance on the ground that the appellant/plaintiff has failed to deposit the balance sale consideration on the date of filing of the suit and as such, has failed to establish his readiness and willingness to perform his part of contract is perverse and palpably erroneous ? b) Whether the Appellate Court was justified in drawing adverse inference against the appellant/plaintiff on readiness and willingness having recording a finding that appellant has paid a further sum of Rs.58,000/- on 24.01.2006 and got the supplementary sale agreement? “ 9. I have heard Sri. Mrutyunjay Tata Bangi, learned counsel for the appellant and Sri. S.S. Yadrami, learned Senior Counsel appearing on behalf of Sri. Girish V. Bhat, learned counsel appearing for the respondent. - 8 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 10. Sri. Mrutyunjay Tata Bangi, learned counsel for the appellant invited the attention of the court to the finding recorded by the Trial Court on Issue Nos.1 and 2 and the finding recorded by the First Appellate Court on the very same aspect and contended that, both the courts below have agreed that plaintiff has proved that defendant No.1 has agreed to sell the suit schedule property and also executed the Agreement of Sale dated 04.07.2002 and another supplementary agreement dated 24.01.2006, which came to be registered subsequently and also with regard to the legal notices issued to the defendant No.1, calling upon him to execute the registered Sale Deed and further the plaintiff has paid the substantial amount to the defendant No.1 as sale consideration and therefore, contended that, the Trial Court, after considering the entire material on record, rightly decreed the suit in entirety and same was erroneously interfered with by the First Appellate Court with regard to compliance of readiness and willingness, which requires to be interfered with in this suit. Learned counsel appearing for the - 9 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 appellant places reliance on the judgment of Division Bench of this court in the case of Hulgappa and another vs. M.A. Gani and others reported in 2025 (1) KLJ 211 and contended that, the plaintiff has shown all inclination to complete the sale transaction, however, the said aspect of the matter was not appreciated by the First Appellate Court and accordingly, sought for interference of this court. 11. Per contra, Sri. 11. Per contra, Sri. S.S.Yadrami, learned Senior Counsel for the respondents submits that the First Appellate Court rightly, arrived at a conclusion that, the plaintiff failed to prove the readiness and willingness of the terms and condition stipulated in Agreement of Sale and in this regard, he referred to the evidence of DW2, one of the witnesses to the Agreement of Sale and contended that, the said Agreement of Sale is farce and the plaintiff is conducting financial business and further the defendant No.1 has borrowed money from the plaintiff for family necessity and in the guise of the same, the plaintiff got - 10 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 execution of the Agreement of Sale without the free consent of the defendant No.1 and accordingly, sought for dismissal of the appeal. 12. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the courts below and perused the original records. 13. On careful perusal of the records would indicate that, the defendant No.1 is the owner of the suit schedule property and as such, the plaintiff and defendant No.1 have entered into Agreement of Sale dated 04.07.2002 (Ex.P1) and same was registered on 05.07.2002. The total consideration stipulated in the Agreement of Sale was Rs.2,80,000/- and as such, the plaintiff has paid Rs.1,30,000/- as earnest money to the defendant No.1. It is also agreed by the parties that defendant No.1 has to execute the registered Sale Deed after receiving balance sale consideration of Rs.1,50,000/- on or before 04.07.2002. Since the defendant No.1 has not shown - 11 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 interest to complete the transaction and as such, the plaintiff caused legal notice dated 01.07.2004 (Ex.P5) calling upon the defendant No.1 execute the registered Sale Deed and same was acknowledged by the defendant No.1 as per Exs.P6 and P7. It is also forthcoming from the records that, the plaintiff and defendant No.1 entered into a supplementary Agreement on 24.01.2006 (Ex.P2) whereby, the plaintiff has paid additional earnest money of Rs.58,000/- towards part consideration and the parties have agreed that the defendant No.1 has to execute the sale deed on or before 31.08.2006. It appears that, the defendant No.1 failed to comply with the terms and conditions of the supplementary Agreement dated 24.01.2006 and as such, the plaintiff caused legal notice dated 25.08.2006 (Ex.P8) calling upon the defendant No.1 to execute a registered Sale Deed. The said legal notice was received by the defendant No.1 as per Exs.P9 and P10. The plaintiff had taken precautionary measure by publishing the Agreement of Sale in the “Vijaya Karnataka News Paper” dated 26.04.2007 (Ex.P13). Despite the - 12 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 same, the defendant No.1 has executed registered Agreement of Sale dated 09.01.2013 (Ex.P15) with the defendant No.2 and as such, defendant No.2 was impleaded in the suit. Taking into consideration, the finding recorded by the both the courts below, the Trial Court after appreciating the material on record, rightly decreed the suit, however, the First Appellate Court has committed an error in reversing the judgment and decree of the Trial Court. In order to prove the readiness and willingness to comply with the requirement of Agreement of Sale the plaintiff has caused legal notices at Exs.P5 and P8 and also taken paper publication as per Ex.P13. Supplementary agreement was entered into as per Ex.P2, wherein, the plaintiff has paid the additional amount of Rs.58,000/- to the defendant No.1. The said aspect makes it clear that, the plaintiff was ever ready and willing to complete the process of execution of registered Sale Deed. It is also pertinent to mentionhere that the defendant No.1, has not replied to the legal notices, denying the averments relating to the execution of registered - 13 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 Agreement of Sale at Exs.P1 and P2. That apart, though the learned Senior Counsel submitted that the plaintiff is having financial business and as such, argued that, the Agreement of Sale has been fraudulently executed and also DW2 deposed about the same. The said arguments cannot be accepted on the sole ground that, the defendant No.1 has not stated about the fraudulent execution of the Agreement of Sale nor stating that the plaintiff is having financial business in the written statement of defendant No.1 as well as evidence of PW2-Scribe to the Agreement of Sale, so also, the witnesses to the Agreement of Sale i.e. PW3 and PW4, makes it clear that, the plaintiff was ever ready and willing to execute the registered Sale Deed and the pleadings on record makes it clear that, the plaintiff had inclination to complete the contract to its logical end. Therefore, the finding recorded by the First Appellate Court requires to be set aside by confirming the judgment and decree passed by the Trial Court. It is also pertinent to mention here that the re-appreciation of the evidence by the First Appellate Court is contrary to the - 14 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 judgment of the Hon'ble Supreme Court in the case of C.S.VENKATESH v. A.S.C. MURTHY (DEAD) BY LRs AND OTHERS reported in (2020)3 SCC 280 and the First Appellate Court has ignored the ratio laid down by the Hon'ble Supreme Court in the above case, with regard to prove the genesis of scope of Section 16(c) Specific Relief Act, 1963. Further, arguments advanced by the learned Senior Counsel appearing for the respondents are devoid of pleadings and therefore, in view of the declaration of by the Hon'ble Supreme Court in the case of National Textiles Corporation Limited vs. Naresh Kumar Bidri Kumar and others reported in 2011 AIR SCW 6180, the Trial Court rightly appreciated the entire material on record as well as the oral evidence adduced by the parties and therefore, substantial question of law framed above favours the plaintiff/appellant. It is also pertinent to mention here that recently Hon’ble Supreme Court in the case of R.Kandaswamy (since dead) and others v. T.R.K.Saraswathy and another reported in - 15 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 (2025) 3 SCC 513 in paragraphs 15 to 21 held as follows: 15. A three-Judge Bench of this Court in Prakash Chandra v. Angadlal15 held, the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 16. This Court in N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr)16 while reiterating that the remedy of specific performance is equitable in nature and that granting or refusing specific performance is within the discretion of the court, had the occasion to observe: “5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short ‘the Act’). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other - 16 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” (emphasis supplied) 17. In Nirmala Anand v. Advent Corpn. (P) Ltd.17, a Bench of three Judges of this Court discussed what are the considerations that need to be kept in view while considering grant or refusal of a decree of specific performance in the following words: “6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept - 17 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.” 18. In Kamal Kumar v. Premlata Joshi18, one finds the following instructive passage: “7. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are: 7.1. First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property. 7.2. Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract. 7.3. Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; 7.4. Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; 7.5. Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money, etc. and, if so, on what grounds. 8. In our opinion, the aforementioned questions are part of the statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the Specific Relief Act, 1963 and - 18 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 Forms 47/48 of Appendices A to C of the Code of Civil Procedure]. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.” 19. Quite recently, Kamal Kumar (supra) has been followed in P. Daivasigamani v. S. Sambandan. WHO CAN BE SAID TO BE ‘READY AND WILLING’? 20. In C.S. Venkatesh vs. A.S.C. Murthy20, this Court on consideration of various decisions culled out what is implied by the words “ready and willing”. It was held☹SCC p.286, para 16) “16. The words ‘ready and willing’ imply that the plaintiff was prepared to carry out those parts of the contract to their logical end so far as they depend upon his performance. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.” 21. Requisite pleadings and proof that are required of a plaintiff to succeed in a suit for specific performance are succinctly captured in this Court’s decision of recent origin - 19 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 in U.N. Krishnamurthy v. A.M. Krishnamurthy21. The relevant passage reads: “24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.” 14. Following the declaration of law made by the Hon’ble Supreme Court in the above case, I am of the view that, the First Appellate Court committed an error in reversing the judgment and decree passed by the Trial Court and therefore, I found perversity in the judgment and decree passed by the First Appellate Court. Hence, I pass the following: - 20 - NC: 2025:KHC-D:6830 RSA No. 100680 of 2019 ORDER i) Regular Second Appeal is allowed; ii) Judgment and decree dated 27.06.2019 passed in RA No.92 of 2017 on the file of the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, is hereby set aside. iii) Judgment and decree dated 19.06.2017 passed in OS No.351 of 2006 on the file of the Principal Senior Civil Judge, Jamakhandi, is hereby confirmed and as such, the suit of the plaintiff is decreed. Sd/- (E.S.INDIRESH) JUDGE SB CT-MCK List No.: 1 Sl No.: 35