BY SRI v. RAGHAVENDRA
Case Details
- 1 - NC: 2025:KHC:15214 RSA No. 406 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.406 OF 2013 (SP) BETWEEN: SRI NARAYAN RAO TAHWAR, S/O LATE SRI RAMACHANDRA RAO, AGED ABOUT 42 YEARS, R/AT HANUMANTHAPURA VILLAGE, MARALAWADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT - 562 121. [BY SRI. PRADEEP NAIK K., ADVOCATE (PH)] …APPELLANT Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka AND: 1. 2. 3. 4. 5. SRI VASUDEVA RAO TAHWAR, S/O LATE SRI GANAPATHI RAO, AGED ABOUT 56 YEARS, SRI UMESH RAO TAHWAR, S/O LATE SRI GANAPATHI RAO, AGED ABOUT 46 YEARS, SRI GITTU RAO TAHWAR, S/O LATE SRI GANAPATHI RAO, AGED ABOUT 64 YEARS,
Legal Reasoning
upon Division Bench decision of this Court in case of C. Nazeer Ahmed v. S. Jahan Ara, reported in ILR 2000 Kar. 3536 to contend fixation of time period within which, contract has to be performed does not make time as essence of contract nor default clause could be taken as expression of such intention. - 8 - NC: 2025:KHC:15214 RSA No. 406 of 2013 10. It was submitted, fact that defendant no.1 was plaintiff's Aunt as brought out in evidence was one of factors required to be considered. Learned counsel sought to highlight conduct of defendants in failing to acknowledge notice sent by RPAD, receiving notice sent by UPC, failing to address any reply and in-turn issuing notice of forfeiture and selling suit property to defendant no.7 after filing of suit, to contend when plaintiff had averred that he was ready to pay balance amount which was a meager sum, there were no justification for both Courts to hold plaintiff was not ready and willing to perform his part of contract. 11. On above submissions, learned counsel proposed following substantial questions of law would arise for consideration. 1) Whether both the Courts are justified in coming to the conclusion that the appellant is not ready and willing to perform his part of the contract contrary to Ex.P2 i.e. the notice of demand? 2) Whether both the Courts are justified in rejecting the prayer for specific performance contrary to Section 20 of the Specific Relief Act? - 9 - NC: 2025:KHC:15214 RSA No. 406 of 2013 12. On other hand, Sri V. Raghavendra, learned counsel appearing for respondents no.6 (A to C) opposed appeal. At outset it was submitted, time of four months was fixed for payment of balance consideration and unlike claimed, plaintiff had not only failed to pay additional sum of Rs.50,000/- within one month as stipulated, but had also failed to pay remaining balance of Rs.23,125/- within four months as stipulated. It was submitted, both Courts had taken note of fact that there was specific clause fixing time within which agreement was to be performed. Hence, time was essence of contract. Apart from above existence of forfeiture clause also indicated same. Therefore, conclusions arrived by both Courts was with reference to material on record and being concurrent did not call for interference in second appeal and sought for dismissal of appeal. 13. Heard learned counsel, perused impugned judgment and decree and record. 14. This second appeal is by unsuccessful plaintiff in suit for specific performance of agreement of sale dated 20.11.2002. Both Courts arrived at conclusion that plaintiff had - 10 - NC: 2025:KHC:15214 RSA No. 406 of 2013 failed to establish readiness and willingness. Though in plaint, plaintiff had averred about execution of agreement of sale, it is seen that plaintiff specifically stated balance amount payable to defendants no.1 to 6 under agreement of sale was Rs.83,125/- and not Rs.23,125/- as submitted by learned counsel for appellant. 15. Perusal of Ex.P1 – agreement of sale would reveal an emphasis on condition about payment of Rs.50,000/- within one month from date of agreement and balance within four months. Existence of clause for forfeiture of entire advance amount in case of failure to pay balance and to get sale deed executed can only be held to indicate intention that time was essence of contract. Moreover PW.2, specifically stated in examination-in-chief that agreement of sale was executed as defendants were in need of money for clearing loan and for family necessities. 16. While passing impugned judgment and decree, trial Court adverted to pleadings and deposition of rival parties along with documentary evidence. After referring to specific admissions about stipulation as well as taking note of fact that - 11 - NC: 2025:KHC:15214 RSA No. 406 of 2013 plaintiff had not taken steps within four months from date of agreement of sale to offer balance consideration and to get sale deed executed, answered issue regarding readiness and willingness against plaintiff. 17. In appeal, first appellate Court concurred with trial Court findings after independent re-appreciation and reference to material on record. It is also noticed Ex.P7 is notice for forfeiture of advance and for cancellation of agreement. But plaintiff has sought only relief for specific performance of agreement of sale dated 20.11.2002. Though, plaintiff sought for declaration against sale deed executed by defendants no.1 to 6 in favour of defendant no.7, there is no specific prayer sought for declaration against termination of agreement by Ex.P7. 18. Hon’ble Supreme Court in case of I.S. Sikandar (Dead) By LRs. and Ors. v. K. Subramani and Ors., reported in 2013 (15) SCC 27, has held in absence of specific prayer for declaration against cancellation, suit for specific performance would not be maintainable. That apart, Hon’ble Supreme Court in case of Abdul Raheem v. Karnataka - 12 - NC: 2025:KHC:15214 RSA No. 406 of 2013 Electricity Board and Ors., reported in 2007 (14) SCC 138, has held question as to whether plaintiff was ready and willing to perform his part of contract by itself would not be a substantial question of law. As it is found that both Courts had adverted to material on record and arrived at conclusion by assigning reasons which are not shown to be perverse, no substantial question of law as proposed would arise for consideration. Decision referred to by appellant would not render assistance to appellant in above facts and circumstances. Hence, appeal is dismissed without admission. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 38
Arguments
SMT. ASHA, D/O LATE SRI GANAPATHI RAO, AGED ABOUT 47 YEARS, SMT BINDU, D/O LATE SRI GANAPATHI RAO, AGED ABOUT 38 YEARS, - 2 - NC: 2025:KHC:15214 RSA No. 406 of 2013 ALL ARE R/AT NO 58, 1ST CROSS, DAYANANDA NAGAR, SRIRAMPURAM, BANDI REDDY CIRCLE, BANGALORE 560 021. 6. SRI B. ANJINAPPA, SINCE DECEASED BY HIS LRs, 6(a) SMT. SHAKUNTHALA, D/O LATE ANJINAPPA, AGED ABOUT 85 YEARS, 6(b) DR. JAGADISH, S/O LATE SRI ANJINAPPA, AGED ABOUT 55 YEARS, 6(c) DR. SATHISH, S/O LATE SRI ANJINAPPA, AGED ABOUT 50 YEARS, 6(a) TO 6(c) ARE R/AT NO 75, SURVEYOR STREET, BASAVANAGUDI, BANGALORE 560 004. …RESPONDENTS [BY SRI V. RAGHAVENDRA, ADVOCATE FOR R6(a) TO R6(c) (PH)] THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 16.1.2013 PASSED IN R.A.NO.81/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, KANAKAPURA, RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.10.2011 PASSED IN OS.NO.29/2006 ON THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN.), RAMANAGARA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI - 3 - NC: 2025:KHC:15214 RSA No. 406 of 2013 ORAL JUDGMENT Challenging judgment and decree dated 16.01.2013 passed by Presiding Officer, Fast Track Court, Kanakapura, Ramanagara District, in R.A.no.81/2011 and judgment and decree dated 31.10.2011 passed by Principal Civil Judge (Sr.Dn.), Ramanagara, in O.S.no.29/2006, this appeal is filed. 2. Brief facts as stated are that appellant was plaintiff in suit for specific performance of agreement of sale dated 20.11.2002, whereunder defendants no.1 to 6 had agreed to convey properties bearing Sy.no.60 measuring 01 Acre 23 guntas and in Sy.no.61 measuring 02 Acres 22 guntas of Hanumanthapura Village, Maralavadi Hobli, Kanakapura Taluk for total sale consideration of Rs.3,50,000/- by receiving advance consideration of Rs.1,50,000/- and payment of another sum of Rs.50,000/- within one month from date of agreement and balance consideration within four months and to get sale deed executed. It was stated that within one month thereafter as agreed, further sum of Rs.50,000/- was paid. Thereafter, with consent of plaintiff/agreement holder, defendants no.1 to 6 executed - 4 - NC: 2025:KHC:15214 RSA No. 406 of 2013 sale deed in favour of one Ganesh Rao Mahadik conveying land bearing Sy.no.60. It was stated that consideration received under agreement was to be adjusted towards land bearing Sy.no.61 sold as per agreement of sale dated 20.11.2002. It was stated, though plaintiff was ever ready and willing to perform his part of contract and had approached defendants no.1 to 6, they kept postponing execution of sale deed on one or other pretext. On 18.11.2005, plaintiff got issued legal notice calling upon defendants to come forward to perform their part of contract. Notices were issued by RPAD as well as by Under Certificate of Posting (‘UCP’). Notice issued by UCP was served. Despite same, no reply was addressed. On other hand, defendants got issued legal notice dated 08.12.2005 for cancellation of agreement of sale and for forfeiture of advance paid. On said cause of action, plaintiff filed suit on 18.01.2006. It was stated, after filing of suit, defendants no.1 to 6 sold suit property to defendant no.7, therefore plaint was got amended and defendant no.7 was impleaded. - 5 - NC: 2025:KHC:15214 RSA No. 406 of 2013 On appearance, defendants no.1 to 6 filed written statement admitting execution of agreement of sale, but opposed specific performance on ground that plaintiff had not approached within time. Defendant no.7 filed separate written statement claiming to be bonafide purchaser. 3. Based on pleadings, trial Court framed following: ISSUES 1) ªÁ¢AiÀÄÄ ºÉýgÀĪÀAvÉ PÀgÁj£À vÀ£Àß ¨sÁUÀzÀ ¤§AzsÀ£ÉAiÀÄ £ÉgÀªÉÃjPÉUÉ DvÀ ¸ÀzÁ ¹zÀÞgÁVAiÀÄÆ ºÁUÀÆ EZÉÒAiÀÄļÀîªÀgÁVAiÀÄÆ EzÁÝgÉAzÀÄ DvÀ ¸Á©ÃvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ? 2) 1 jAzÀ 6£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ ºÉýgÀĪÀAvÉ vÁ:09.12.2005 gÀAzÀÄ PÉÆlÖ £ÉÆÃnù£À ªÀÄÆ®PÀ ªÁ¢AiÉÆA¢V£À PÀgÁgÀÄ gÀzÁÝVzÉAiÉÄAzÀÄ CªÀgÀÄ ¸Á©ÃvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ? 3) zÁªÉAiÀÄÄ PÁ®«Äw ¨ÁzsÀPÀPÉÌ M¼ÀUÁVzÉAiÉÄÃ? 4) ªÁ¢AiÀÄÄ PÉýgÀĪÀAvÉ ¤¢üðµÀÖ £ÉgÀªÉÃjPÉAiÀÄ ¥ÀjºÁgÀPÉÌ CªÀgÀÄ CºÀðgÉÃ? 5) AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ ªÀiÁqÀ¨ÉÃPÀÄ? ADDITIONAL ISSUES 1) Whether the plaintiff proves execution of Sale Deed dated 22.03.2006 is collusive, sham and nominal without any consideration and not binding on him? 2) Whether 7th defendant is the bonafide purchaser of schedule property? - 6 - NC: 2025:KHC:15214 RSA No. 406 of 2013 4. In trial, plaintiff examined himself and another as PWs.1 and 2 and got marked Exs.P1 to P14. On other hand, defendant no.2 was examined as DW-, no documents were marked. 5. On consideration, trial Court answered issues no.1, 3, 4 and additional issues no.1 and 2 in negative; issue no.2 in affirmative and issue no.5 by dismissing suit. but directed legal representatives of defendant no.1 i.e. defendants no.2 to 6 to refund advance sale consideration of Rs.1,50,000/- with interest at 6% per annum from date of agreement till realization. 6. Aggrieved plaintiff filed RA.no.81/2011 on various grounds. Based on same, first appellate Court framed following points: 1) Whether the plaintiff was ready and willing to perform his part of contract? 2) Whether the trial Court is justified in specific for dismissing performance of contract? suit the 3) Whether the judgment and decree of the trial Court is required to be interfered with in this appeal? - 7 - NC: 2025:KHC:15214 RSA No. 406 of 2013 7. On consideration, it answered points no.1 and 3 in negative and point no.2 in affirmative and dismissed appeal, leading to this second appeal. 8. Sri Pradeep Naik K., learned counsel for plaintiff submitted when execution of agreement of sale and receipt of consideration was admitted, both Courts were not justified in dismissing suit. It was submitted, total sale consideration insofar as present suit property would be Rs.2,23,125/- out of which, plaintiff had paid Rs.1,50,000/- as advance, at time of agreement of sale and paid Rs.50,000/- within one month thereafter leaving a small amount of Rs.23,125/- in balance. In view of fact that substantial consideration was paid, both Courts were not justified in coming to conclusion that plaintiff was not ready and willing to perform his part of contract. 9. In support of his submission, learned counsel relied