- 1 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 489 OF 2013 (SP) BETWEEN: 1. B.N. SRINIVASA AGED ABOUT 55 YEARS S/O LATE NEELE GOWDA (SINCE DEAD BY HIS LEGAL REPRESENTATIVE’S APPELLANT No.3) 2. SMT SUSHEELAMMA AGED ABOUT 50 YEARS W/O B.N. SRINIVASA (SINCE DEAD BY HIS LEGAL REPRESENTATIVE’S APPELLANT No.3) 3. SUNIL AGED ABOUT 28 YEARS S/O B.N. SRINIVASA 1 TO 3 ARE RESIDINGA AT BALLEKERE VILLAGE, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 ARAKERE HOBLI, S.R. PATNA TALUK MANDYA DISTRICT – 571 415. …APPELLANTS (BY SRI. A.S. MAHESHA, ADVOCATE; VIDE ORDER DATED 25.04.2025, A3 IS LEGAL REPRESENTATIVE’S OF DECEASED A1 AND A2) AND: S.J. SRINIVASA AGED ABOUT 48 YEARS S/O JAVARAIAH R/AT GOSEGOWDA BEEDI SRIRANGAPATNA TOWN MANDYA DISTRICT – 571 415 …RESPONDENT (BY SRI. N. SHIVA KUMAR, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 15.12.2012 PASSED IN R.A.NO.14/2011 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 18.12.2010 PASSED IN OS.NO.237/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, SRIRANGAPATNA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 15.12.2012 passed in R.A.No.14/2011 by the learned Additional Senior Civil Judge, Srirangapatna, and the judgment and decree dated 18.12.2010 passed in O.S.No.237/2007 by the learned Prl. Civil Judge (Jr. dn.) and JMFC, Srirangapatna. 2. For convenience, the parties are referred to, as per their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts, leading rise to filing of this appeal are as follows: The plaintiff filed a suit for specific performance of a contract. It is alleged that the defendants are the absolute owners of the suit schedule property and they have agreed to sell the suit schedule property for consideration of - 4 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 Rs.1,60,000/- and out of Rs.1,60,000/-, the plaintiff paid Rs.50,000/- towards the earnest money and it was agreed that the balance sale consideration amount to be paid within 6 months from the date of execution of a sale agreement. It was also agreed that the defendants to provide all the required documents at the time of registration and delivered the possession of the suit schedule property in favour of the plaintiff. The defendants have executed the sale agreement in favour of the plaintiff on 22.03.2007. The plaintiff requested the defendants to receive the balance sale consideration amount and execute a registered sale deed. Despite the request made by the plaintiff, the defendants did not come forward to receive the balance sale consideration amount and executed a registered sale deed. The plaintiff got issued a legal notice to the defendants on 21.09.2007 calling upon the defendants to receive the balance sale consideration amount and execute a registered sale deed. The defendants replied to the legal notice stating that the - 5 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. The defendants did not come forward to receive the balance sale consideration amount and execute a registered sale deed. Hence, a cause of action arose for the plaintiff to file a suit for specific performance of a contract. 3.1. The defendants filed a written statement denying the averments made in the plaint. It is also denied that the defendants have executed the sale agreement dated 22.03.2007 in favour of the plaintiff. It is contended that the defendants have obtained loan from the plaintiff and accordingly, the defendants have sent demand draft of Rs.52,000/- including the interest along with the reply. It is contended that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. It is contended that the plaintiff got created the sale agreement and filed the - 6 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 present suit. Hence, the suit filed by the plaintiff is not maintainable. Accordingly, prays to dismiss the suit. 3.2. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the plaintiff proves that the defendants have executed an agreement on 22.03.2007 to sell the suit schedule property? 2) Whether the plaintiff proves that the defendants have failed to execute the sale deed as agreed? 3) Whether the plaintiff was ready and willing to perform his part of contract as agreed? 4) Whether the defendants prove that they executed a document only for borrowing Rs.50,000/- as stated in para 5 of W.S.? 5) If so whether the defendants prove that a D.D. for Rs.52,000/- dated 11.10.2007 was sent to the plaintiff? - 7 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 6) Whether the plaintiff is entitled for the relief as prayed for? 7) What order or decree? 3.3. The plaintiff, to substantiate his case, examined himself as PW1, examined two witnesses as PW2 and PW3, and marked 06 documents as Exs.P1 to P6. In rebuttal, defendant No.1 examined himself as DW1, examined two witnesses as DW2 and DW3 and marked 02 documents as Exs.D1 and D2. The trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the affirmative, issue Nos.4 and 5 in the negative, issue No.6 entitle, and issue No.7 as per the final order, the suit of the plaintiff was decreed with costs vide judgment dated 18.12.2010 and the defendants are directed to execute the absolute registered sale deed in favour of the plaintiff in respect of the suit schedule property in pursuance of the sale agreement within three months by accepting the balance sale consideration - 8 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 amount. Failing which, the plaintiff is liberty to approach the Court to get the execution of sale deed with due process of law. 3.4. The defendants, aggrieved by the judgment and decree passed in O.S.No.237/2007, preferred an appeal in R.A.No.14/2011 on the file of learned Additional Senior Civil Judge, Srirangapatna. 3.5. The First Appellate Court, after hearing the learned counsel for the parties, has framed the following points for consideration: 1) Whether the appellants prove that the judgment and decree passed in O.S.N237/2007 on the file of Prl. Civil Judge (Jr. Dn.) and JMFC, Srirangapatna, dated 18.12.2010 is perverse, capricious and is not sustainable in law? 2) What order? - 9 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 3.6. The First Appellate Court, after re-appreciating the entire evidence on record, answered point No.1 in the negative and point No.2 as per the final order. The appeal was dismissed vide judgment dated 15.12.2012. The defendants, aggrieved by the impugned judgments, filed this Regular Second Appeal. 3.7. This Court, on 08.08.2013, admitted the appeal on the following substantial question of law: “Whether both the courts below were justified in accepting the agreement dated 22.03.2007 is for sale of suit land when admittedly defendants have sent Rs.52,000/- by way of Demand Draft to the plaintiff even before the suit for specific performance is filed?” 4. Heard the arguments of the learned counsel for the defendants and also learned counsel for the plaintiff. 5. Learned counsel for the defendants submits that the defendants never agreed to sell the suit schedule - 10 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 property in favour of the plaintiff. He submits that the defendants have taken a loan from the plaintiff for Rs.50,000/-. He submits that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. He submits that along with the reply, the defendants have sent a demand draft of Rs.52,000/- including the interest. He submits that the said aspect has not been properly considered by the Courts below and committed an error in passing the impugned judgments. He submits that the defendants have no other land except the suit schedule property. He submits that if specific performance of contract is granted, the defendants will be put to hardship. He submits that both the Courts below have not properly exercised the discretion under Section 20 of the Specific Relief Act, 1963 (for short ‘the Act’). Hence, on these grounds, he prays to allow the appeal. 6. Per contra, learned counsel for the plaintiff submits that the defendants are the owners of the suit schedule property and they were in need of money and - 11 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 approached the plaintiff and offered to sell the suit schedule property for consideration of Rs.1,60,000/- and accordingly, the plaintiff has paid a sum of Rs.50,000/- towards advance sale consideration amount. He submits that after receiving the advance sale consideration amount, the defendants have executed a sale agreement in favour of the plaintiff and it was agreed that the balance sale consideration amount to be paid within six months from the date of execution of a sale agreement. He submits that the plaintiff was ready and willing to perform his part of contract and the plaintiff issued a legal notice. He submits that the defendants have replied to the legal notice stating that the transaction between the plaintiff and the defendants is a loan transaction. 7. Further, he placed reliance on Sections 91 and 92 of the Evidence Act, 1872. He submits that any amount of oral evidence in order to vary or contradict the terms and conditions of an instrument is inadmissible. He - 12 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 submits that both the Courts below have concurrently recorded the finding of facts that the plaintiff has proved the execution of a sale agreement and receipt of Rs.50,000/- as an advance sale consideration amount. He also submits that the plaintiff did not encash the demand draft sent by the defendants along with the reply notice. He submits that the defendants have not pleaded in the written statement regarding the hardship. He submits that both the Courts below have rightly exercised judicial discretion under Section 20 of the Act of 1963 and granted the relief of specific performance of a contract. Hence, on these grounds, he prays to dismiss the appeal. 8. Perused the records, and considered the submissions of learned counsel for the parties. 9. Substantial question of law: It is an undisputed fact that the defendants are the absolute owners of the suit schedule property and it is the case of the plaintiff that the defendants approached the plaintiff - 13 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 and offered to sell the suit schedule property for consideration of Rs.1,60,000/- and the plaintiff agreed to purchase the said suit schedule property for the aforesaid consideration. Out of Rs.1,60,000/-, the plaintiff paid Rs.50,000/- towards the advance sale consideration amount to the defendants and the defendants have executed a sale agreement on 22.03.2007 and it was agreed that the balance sale consideration amount to be paid within six months from the date of execution of a registered sale agreement and also it was agreed that the defendants should collect the documents for the purpose of execution of a registered sale deed. The defendants did not perform their part of contract. The plaintiff got issued a legal notice to the defendants calling upon the defendants to receive the balance sale consideration amount and execute a registered sale deed. The defendants replied to the legal notice saying that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction and along with - 14 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 the reply has sent a demand draft of Rs.52,000/-. But denied to perform their part of contract. The plaintiff, in order to substantiate his case, examined himself as PW1 and he reiterated the plaint averments in the examination- in-chief and in order to prove that the defendants have executed the sale agreement in favour of the plaintiff, produced the sale agreement marked as Ex.P3, copy of the legal notice is marked as Ex.P4, Ex.P5 is the reply notice, Ex.P6 is the demand draft sent along with the reply notice. During the course of cross-examination except suggesting that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. The plaintiff, in order to approve the execution of a sale agreement, examined the attesting witnesses as PW2 and PW3. PW2 and PW3 have reiterated the evidence of PW1 and they have identified their signature on Ex.P3. Their signatures are marked in Ex.P3. The signature of Srinivasa is marked as Ex.P3 (d to f), signature of Susheelamma is marked as Ex.P3 (a to c), - 15 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 signature of Sunilkumar is marked as Ex.P3 (g to i) and signature of PW2 was marked as Ex.P3j. Nothing has been elicited from the mouth of these witnesses. Defendant No.1 was examined as DW1. He reiterated the written statement averments. He admits the execution of a sale agreement in favour of the plaintiff. But the said sale agreement was executed as a security for the repayment of the loan amount obtained by the defendants from the plaintiff. In order to prove the transaction, the defendants examined two witnesses as DW2 and DW3 and they have deposed that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. 10. From the perusal of the evidence placed on record by the parties, it is clear that the defendants are the absolute owners of the suit schedule property and there is a transaction between the plaintiff and the defendants. The plaintiff contended that the transaction - 16 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 between the plaintiff and defendants is a sale transaction. The said fact has been denied by the defendants. The plaintiff has produced Ex.P3 i.e., the sale agreement and the defendants admitted their signature on Ex.P3. The defendants along with the reply has sent demand draft of Rs.52,000/-. Admittedly, the plaintiff has not encashed the demand draft of Rs.52,000/- sent along with the reply notice. The defendants contended that it is a loan transaction and not a sale transaction. Burden is on the defendants to prove that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. The plaintiffs have admitted their signature on Ex.P3 and receipt of Rs.50,000/- as an advance sale consideration amount. The plaintiff in order to prove that he was ready and willing to perform his part of contract got issued a legal notice marked as Ex.P5. The plaintiff has complied the requirements of Section 16(c) of the Act of 1963. Both the Courts below have concurrently recorded a finding of facts that the plaintiff has proved the - 17 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 execution of a sale agreement executed by the defendants in favour of the plaintiff and also the plaintiff has proved that he was ready and willing to perform his part of contract and the plaintiff did not encash the demand draft sent by the defendants to the plaintiff. As contended by the defendants, if the transaction between the plaintiff and the defendants was a loan transaction, the defendants could have sent a legal notice to the plaintiff before issuing Ex.P5 and could have returned the amount. On the contrary, the plaintiff has got issued a legal notice calling upon the defendants to receive the balance sale consideration amount and execute a registered sale deed. Then the defendants issued a reply contending that the transaction between the plaintiff and the defendants is a loan transaction and not a sale transaction. The defendants have not pleaded in the written statement in regard to hardship. The pleading regarding hardship is mandatory. As hardship is an equitable, discretionary defence. The burden to plead and move falls squarely on - 18 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 the defendants. When there is no pleading hardship, the Court is not permitted to make out a case of hardship in its own. The defence raised by the defendants is after thought. Both the courts below have rightly considered the material placed on record and rightly granted a relief of specific performance of a contract. Hence, I do not find any error in the impugned judgments. Accordingly I answer substantial question in the affirmative. 11. Accordingly, I proceed to pass the following: ORDER The Regular Second Appeal is dismissed. The learned counsel for the plaintiff on instruction submits that the plaintiff is ready to pay additional consideration amount of Rs.5,00,000/- in addition to the consideration amount agreed between the parties. The plaintiff is directed to deposit the additional consideration - 19 - HC-KAR NC: 2026:KHC:25530 RSA No. 489 of 2013 amount of Rs.5,00,000/- and balance consideration amount if any before the trial Court within a period of three months from the date of receipt of copy of this order. Sd/- (ASHOK S.KINAGI) JUDGE SSB