SRI S. PRASHANTH v. SRI SHIVAMADAPPA

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE C.P.C. AGAINST THE JUDGMENT AND DECREE DATED 13-10-2015 PASSED IN ORIGINAL SUIT NO.33 OF 2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., KOLLEGALA, DECREEING THE SUIT FOR SPECIFIC PERFORMANCE. THIS REGULAR FIRST APPEAL IS COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellant/defendant No.3 challenging the judgment and decree dated 13-10-2015 passed by the learned Senior Civil Judge and Judicial Magistrate First Class, Kollegala, in Original Suit No.33 of 2014.

2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is defendant No.3, respondent No.1 is the plaintiff and respondent Nos.2, 3 and 4 are defendant Nos.1, 2 and 4 respectively before the trial Court. - 3 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017

3. The brief facts of the case of the plaintiff are that the defendants acquired property under a registered Sale Deed dated 30-1-1970. The khata stood in the name of defendant No.1 being the owner in possession of the suit schedule property bearing Municipality No.9/1, Assessment No.1, measuring 1044 square feet, situated at Kollegala Town, Chamarajanagar District. The defendants were intending to sell the suit schedule property to the plaintiff. Thus, the defendants offered the plaintiff to purchase the suit schedule property for total sale consideration of Rs.20,00,000/-. Accordingly, on 20-11-2012, the defendants executed the registered Agreement of Sale with respect to the suit schedule property in favour of the plaintiff and same was registered before the Sub-Registrar, Kollegala. Two years time was fixed to execute the Sale Deed. As on the date of the agreement, the plaintiff had given Rs.4,00,000/- to the defendants. Further, in earlier transaction, i.e. on 30-5-2012, the defendants mortgaged the suit schedule property in favour of the plaintiff for Rs.10,00,000/- through registered Mortgage Deed. Thus, the defendants have received in all Rs.14,00,000/- from the plaintiff. Since the plaintiff was ready and willing party to perform his part of the contract, he - 4 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 requested the defendants to execute the Sale Deed by receiving balance sale consideration, but the defendants failed to perform their part of the contract. In this regard, the plaintiff issued legal notice on 5-8-2013 and called upon the defendants to execute the Sale Deed by receiving balance sale consideration, but the defendants failed to execute the Sale Deed in favour of the plaintiff. Hence, the plaintiff filed a suit for specific performance of contract based on Agreement of Sale.

4. Defendant Nos.1, 2 and 4 appeared through their counsel, but did not file any written statement. Defendant No.3 did not appear before the Court and thus, he was placed ex parte.

5. In order to prove his case, the plaintiff examined himself as PW1, an attesting witness by name S. Suresh Kumar as PW2 and relied upon thirteen documents as per Exs.P1 to P13.

6. On the basis of pleadings of the parties, the trial Court framed the following issues: - 5 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017

1. Whether the plaintiff proves that the defendants being the owners of the suit schedule property have executed an agreement of sale dated 20-11-2012 with respect to the suit property agreeing to sell the suit property to the plaintiff for total consideration amount of Rs.20 lakhs and they have received Rs.4 lakhs as advance consideration amount on the date of the agreement of the sale and defendants have agreed to execute the registered sale deed within the period of 2 years?

2. Whether the plaintiff proves that the defendants have executed registered mortgage deed with respect to the suit property on 30-05-2012 to the plaintiff and received Rs.10 lakhs under the said deed from the plaintiff and the defendants in all received Rs.14 lakhs from the plaintiff under the agreement of sale of the suit property?

3. Whether the plaintiff proves that he was ever ready and willing to perform his part of the contract under the agreement of sale?

4. Whether the plaintiff proves that the defendants have failed to perform their part of the contract under the agreement of sale in spite of several request and demands from him and in spite of issuance of legal notice dated 05-08-2013 and paper publication? - 6 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017

5. Whether the plaintiff is entitle to get relief as prayed for?

6. What order or decree?

7. The trial Court, after hearing the matter and considering the oral and documentary evidence on record, answered points Nos.1 to 5 in the affirmative and consequently, decreed the suit of the plaintiff and directed the defendants to execute the Sale Deed in favour of the plaintiff with respect to suit schedule property as per the terms of Agreement of Sale dated 20-11-2012 executed by them by receiving balance consideration of Rs.6,00,000/- from the plaintiff within a period three months. Further, it is ordered that if the defendants failed to execute the registered Sale Deed with respect to suit property in favour of the plaintiff within the stipulated period, the plaintiff is at liberty to approach the Court.

8. Aggrieved by the judgment and decree passed by the trial Court, defendant No.3 has filed the present appeal.

9. Learned counsel for the appellant/defendant No.3 has contended that defendant No.3 had left Kollegala in the year - 7 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 2012 on account of personal and family issues and had no contact with the family for long-time. Defendant No.3 neither served with the notice, nor had the knowledge of the suit. Later, he came to know about an ex parte decree order passed in the suit. Thus, the judgment and decree passed by the trial Court is not in accordance with law. Further, the trial Court has failed to consider and appreciate the transactions between the parties in the month of May, 2012 is exclusively mortgage of the property and there is no intention whatsoever to sell the suit schedule property. Thus, a serious legal error resulted in miscarriage of justice, which calls for interference by this Court. Further, the trial Court has failed to consider and appreciate the suit schedule property is dwelling house in the heart of developed town of Kollegala is worth Rs.1.25 to 1.50 crore. Hence, he prayed for allowing the appeal.

10. Per contra, learned counsel plaintiff/respondent No.1 has contended that the defendants executed the registered Agreement of Sale, wherein the defendants agreed to sell the suit schedule property for Rs.20,00,000/- and received advance sale consideration of Rs.4,00,000/- and in earlier transaction, i.e. on 30-5-2012, the - 8 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 defendants mortgaged the suit schedule property in favour of the plaintiff for Rs.10,00,000/-. Thus, the defendants in all received Rs.14,00,000/-. Further, the plaintiff has always been ready and willing party to perform his part of the contract, but the defendants have failed to perform their part of the contract. Therefore, the trial Court has rightly decreed the suit of the plaintiff. Hence, he prayed for dismissing the appeal.

11. After hearing the learned counsel for the parties and perusing the material available on record, the points that would arise for our consideration in this appeal are: I. Whether the plaintiff proved that he entered into Agreement of Sale dated 20-11-2012 with the defendants for purchase of the suit schedule property for sale consideration of Rs.20,00,000/-? II. Whether the plaintiff proved that he has always been ready and willing party to perform his part of the contract, but the defendants have breached the contract and hence, he is entitled for the relief, as sought for? III. Whether the judgment and decree passed by the trial Court is perverse, arbitrary, and illegal and thus, calls for interference of this Court? - 9 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 IV. What order or decree? Point Nos.I and II:

12. As point Nos.I and II are interlinked, they are taken up together for common discussion in order to avoid repetition of facts and law. In order to establish the claim of the plaintiff, the plaintiff examined himself on oath as PW1. In his evidence, he has reiterated the averments made in the plaint. He has stated that on 20-11-2012, the defendants offered to sell the suit schedule property in his favour for total sale consideration of Rs.20,00,000/-. He agreed for the same and paid advance amount of Rs.4,00,000/- to the defendants, and they have acknowledged the same. Accordingly, the defendants have executed the Agreement of Sale, which was registered before the Sub-Registrar, Kollegala. He further stated that the defendants have executed the registered Mortgage Deed in respect of the suit schedule property on 30-5-2012 in favour of the plaintiff and received a sum of Rs.10,00,000/- from the plaintiff. Thus, the defendants have received in all Rs.14,00,000/- from the plaintiff and the balance sale consideration of Rs.6,00,000/- was agreed to be payable at the time of registration of the Sale Deed. - 10 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017

13. In support of oral testimony of PW1, he has relied upon Ex.P1-registered Aadharapatra/Mortgage Deed dated 30-5-2012 executed by the defendants in favour of the plaintiff in respect of the suit schedule property, Ex.P2-registered Agreement of Sale dated 20-11-2012 executed by the defendants in favour of the plaintiff, Ex.P3-registered Sale Deed dated 30-1-1970 executed in favour of defendant No.1 in respect of the suit schedule property, Exs.P4 and P5-Self Assessment Form II and tax paid receipt, which shows defendant No.1 as the owner of the suit schedule property, Ex.P6-legal notice of the plaintiff issued to the defendants, Exs.P7 to 10-returned postal acknowledgements, Ex.P11-paper publication, Ex.P12-tax register extract and Ex.P13-certified copy of Form III.

14. In this case, the contents of Exs.P1 and P2 are not disputed by the defendants by way of cross-examination of PW1 or by filing written statement. Thus, the defendants have not denied the contents of the plaint and so also, the Agreement of Sale dated 20-11-2012 and Aadharapatra dated 30-5-2012 in respect of the suit schedule property. - 11 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017

15. The plaintiff, in order to prove his case, got examined one of the attesting witnesses to Agreement of Sale as PW2. PW2 has stated that the defendants have executed Ex.P2- Agreement of Sale in his presence in favour of the plaintiff, wherein the defendants have agreed to sell the suit schedule property in favour of the plaintiff for total sale consideration of Rs.20,00,000/- and received advance consideration of Rs.4,00,000/-. In this case, attesting witness, PW2, has also not been cross-examined by the defendants.

16. Admittedly, defendant No.1 is the owner of the suit schedule property and defendant Nos.2 to 4 are the children of defendant No.1. Ex.P1-registered Aadharapatra and Ex.P2- registered Agreement of Sale executed by the defendants and both these documents are original registered instruments. The plaintiff has proved contents of Ex.P2-Agreement of Sale by examining PW2, attesting witness. However, the defendants have not disputed the case of the plaintiffs and contents of Exs.P1 and P2. Even the present appeal, appellant/defendant No.3 has not placed any material to disbelieve the contents of Exs.P1 and P2. In the absence of any - 12 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 contra documents, the oral evidence of PW1 and contents of Exs.P1 and P2 have to be believed. Further, the contention of the plaintiff stands corroborated with the contents of Exs.P1 and P2. From the documentary evidence, it also establishes that on 5-8-2013, the plaintiff got issued legal notice to the defendants vide Ex.P6. In spite of issuance of legal notice, the defendants did not come forward to execute the Sale Deed. Further, the plaintiff also got issued notice through paper publication vide Ex.P11 in respect of execution of Agreement of Sale by the defendants in his favour and also informed the public not to enter into any transactions with the defendants in respect of the suit schedule property. Thus, the oral and documentary evidence clearly establish that the plaintiff has always been ready and willing party to perform his part of the contract, but the defendants failed to execute the Sale Deed in favour of the plaintiff.

17. The defendants have taken contention that the transaction in question is mortgage and not Agreement of Sale. Ex.P1 is the registered Aadharapatra/Mortgage Deed dated 30-5-2012 and Ex.P2 is the Agreement of Sale dated 20-11-2012, wherein the defendants have agreed to sell the - 13 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 suit schedule property in favour of the plaintiff. Hence, the defendants had the intention to alienate the suit schedule property in favour of the plaintiff under registered instrument. Admittedly, the defendants have not filed suit for redemption of mortgage. In the absence of such suit, it can be inferred that the defendants had intention to sell the suit schedule property.

18. The plaintiff further proved that he was ready and willing party to perform his part of the contract, but the defendants have failed to perform their part of the contract as per the terms of Agreement of Sale. The plaintiff also proved that he had sufficient balance to purchase the suit schedule property and to execute the registered Sale Deed in his favour in respect of the suit schedule property.

19. The appellant/defendant No.3 has contention that the sale consideration shown in Ex.P2 is Rs.20,00,000/- only and the present value of the suit schedule property is more than Rs.1.25 to 1.50 crore. Thus, there is escalation in price in respect of the suit schedule property. The Hon'ble Apex Court in the case NARINDERJIT SINGH v. NORTH STAR ESTATE PROMOTERS LIMITED reported in - 14 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 (2012) 5 SCC 712, held that escalation of price is not a ground to deny specific performance of agreement to sell, when seller had neither pleaded hardship nor produced any evidence to show that it will be inevitable to order specific performance of agreement. Whereas, in the instant case, the defendants neither pleaded hardship, nor produced any documents or evidence to show that it will be inevitable to order specific performance of agreement.

20. Looking into any angle, the plaintiff proved execution of Agreement of Sale and payment of advance sale consideration to the defendants. Further, the plaintiff has proved readiness and willingness to perform his part of the contract with balance sale consideration. In view of above discussion, we answer Point Nos.I and II in the affirmative. Point No.III:

21. In view of answer to Points Nos.I and II, we hold that the trial Court, considering the oral and documentary evidence placed on record, was justified in decreeing the suit of the plaintiff. Hence, no interference is called for in that regard. - 15 - NC: 2025:KHC:12239-DB RFA No. 1419 of 2017 Point No.IV:

22. In view of the above discussion, we proceed to pass the following order: O R D E R i. Appeal is dismissed. ii. The judgment and decree dated 13-10-2015 passed by the learned Senior Civil Judge and Judicial Magistrate First Class, Kollegala, in Original Suit No.33 of 2014, is hereby confirmed. iii. No order as to costs. In view of dismissal of the main appeal, pending applications, if any, stand dismissed. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE KVK List No.: 1 Sl No.: 18