The High Court · 1994
Case Details
- 1 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1674 OF 2024 (SP) BETWEEN: SRI THIMMAIAH S/O LATE MUNIVEERAPPA SINCE DEAD BY HIS LRs SMT. KRISHNAMMA W/O THIMMAIAH DIED ON 22-09-2021 LRs ARE ALREADY ON RECORD 1. SMT. BHAGYAMMA W/O NARAYANASWAMY AGED ABOUT 54 YEARS 2. SMT. KANTHAMMA W/O LAKSHMAN AGED ABOUT 40 YEARS No. 1 AND 2 ARE R/AT MARALABAGILU, DEVANAHALLI TOWN DEVANAHALLI-562 110. …APPELLANTS (BY SRI. YOGESH .M, ADVOCATE FOR SRI. MANJUNATHA .V, ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 AND:
Legal Reasoning
1. SRI. A. RAJENDRA BABU S/O RAMASWAMAPPA AGED ABOUT 62 YEARS 2. SMT. VEENA DEVI W/O RAJENDRA BABU AGED ABOUT 57 YEARS R1 AND R2 ARE RESIDING AT NO.47, 1ST CROSS PRIYADARSHINI LAYOUT MUDALAPALYA, NAGARABHAVI BENGALURU-560 072. 3. SRI. M. MAHESH S/O T. MUNISWAMAPPA AGED ABOUT 38 YEARS RESIDING AT NO.235 5TH MAIN ROAD, SECTOR - B 1ST PHASE, MIG YELAHANKA NEW TOWN BENGALURU - 560 064. …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.08.2024 PASSED IN RA NO.15003/2022 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL SITTING AT DEVANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.12.2021 PASSED IN OS NO. 1928/2006 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI - 3 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 29.08.2024 passed in R.A.No.15003/2022 by the learned V Additional District and Sessions Judge, Bengaluru Rural, sitting at Devanahalli, and the judgment and decree dated 1.12.2021 passed in O.S.No.1928/2006 by the learned Principal Senior Civil Judge and JMFC, Devanahalli. 2. For convenience, parties are referred to based on their rankings before the trial Court. Appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The original plaintiff, Sri Thimmaiah, filed a suit against the defendants for the relief of specific performance of the contract regarding the suit schedule property. It is the case of the plaintiff, that defendant Nos.1 & 2 are the absolute owners of the suit schedule property. Defendant No.1 approached the plaintiff and offered him to purchase - 4 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 the suit schedule property for consideration of Rs.4,90,000/-, as defendant No.1 expressed his intention to clear loan and to procure suitable properties. The plaintiff paid Rs.40,000/- towards advance sale consideration. The defendants executed a sale agreement on 05.05.1994 and delivered the possession of the suit schedule property to plaintiff in part performance of contract. As per the terms of the agreement, the balance sale consideration of Rs.4,50,000/- to be paid in 2 instalments i.e., Rs.2 lakhs before 30th December 1994. If the execution of Registered sale deed is delayed, the plaintiff was bound to pay interest on the balance consideration on the prevailing rate of interest charged by the Nationalised Banks. Time was not the essence of contract. The plaintiff paid the payments as follows: 1) Rs.1,50,000/- on 13.07.1994 2) Rs.50,000/- on 04.09.1994 3) Rs. 1,75,000/- on 22.01.1995 4) Rs. 30,000/- on 30.08.1995 5) Rs. 40,000/- on 04.04.1994 - 5 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 Thus, in all, the plaintiff had paid a sum of Rs.4,55,000/-. It is contended that the plaintiff is/was ready and willing to perform his part of the contract. But defendants No.1 and 2 went on postponing to perform their part of contract. On 23.6.2006, the plaintiff got issued a legal notice to defendant no.1, calling upon defendant no.1 to receive the balance consideration amount and execute a registered sale deed. Defendants No.1 and 2 executed a registered sale deed in favour of defendant No.3 on 16.11.2006. Hence, a cause of action arises for the plaintiff to file a suit for specific performance of contract. Accordingly, prays to decree the suit. 3.1. Defendant No.1 filed a written statement admitting the execution of the sale agreement, receipt of consideration amount and receipt of legal notice. It is contended that the defendant has rescinded the sale agreement due to failure of plaintiff to perform his part of contract as per the agreement. The suit filed by the plaintiff is barred by limitation. No cause of action was - 6 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 arisen. Hence, prays to dismiss the suit against defendants nos.1 and 2. 3.2. Defendant No.3 filed a written statement contending that defendant No.1 was the absolute owner of the suit property by virtue of partition deed dated 22.6.1978 and defendant No.3, after verifying the records, purchased the said property under a registered sale deed dated 16.11.2006, and defendant No.1 delivered the possession of the suit schedule property. Defendant No.3 paid the valuable consideration of Rs.16,65,000/-. Hence, prays to dismiss the suit against defendant No.3. 3.3. The trial Court, based on the pleadings of the parties, framed the relevant issues. The plaintiff to substantiate his case, examined himself as PW.1, examined three witnesses as PWs.2 to 4 and marked 21 documents as exhibits P.1 to P.21. On the other hand, defendant No.3 was examined as DW.1, marked 13 documents as exhibits D.1 to D.13. The trial Court, on assessment of verbal and documentary evidence, - 7 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 dismissed the suit of the plaintiff for the relief of specific performance of contract. It is held that the plaintiff is entitled for refund of earnest money of Rs,4,55,000/- and directed defendant no.1 to pay the said amount to the plaintiff with interest at the rate of 6% p.a. till realisation. 3.3. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.1928/2006, dismissing the suit for specific performance of contract, filed an appeal in R.A.No.15003/2022 on the file of V Additional District and Sessions Judge, Devanahalli. The first Appellate Court, on reassessing the verbal and documentary evidence, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. The plaintiffs, aggrieved by the impugned judgments, have filed this Regular Second Appeal. 4. Heard the learned counsel for the plaintiffs. 5. Learned counsel for the plaintiffs submits that the courts below have answered issue no.1 in the affirmative holding that the plaintiff has proved the execution of sale - 8 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 agreement by defendant nos.1 and 2 and also receipt of advance sale consideration of Rs.4,55,000/- by them. He submits that the time is not the essence of contract. The suit is filed within three years from the date of denial. Hence, the suit filed by the plaintiffs falls within part II of Article 54 of the Limitation Act. The Courts below have committed an error in passing the impugned judgments. Hence, on these grounds, prays to allow the appeal. 5. Perused the records and considered the submissions of the learned counsel for the plaintiffs. 6. To prove that defendant no.1 has agreed to sell the suit schedule property for a consideration of Rs.4,90,000/-, one of the LR of the original plaintiff was examined as PW.1 and she has reiterated the plaint averments in the examination-in-chief and to prove that defendant No.1 executed a sale agreement in favour of the plaintiff, produced the original sale agreement marked as Ex.P.14 and also to show that the plaintiff was/is always - 9 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 ready and willing to perform his part of contract, issued legal notice was marked as Ex.P.15. Further, the plaintiffs also examined three witnesses as pw2 to pw4 to prove the execution of the sale agreement. 6.1. On the other hand, defendant No.3, who is the purchaser of the suit schedule property from defendant No.1, examined himself as DW.1 and he deposed that defendant no.3, after verifying the records, had purchased the suit schedule land and that he is the bonafide purchaser of the value without notice and he has produced the document Ex.D.1, certified copy of the registered sale deed executed by defendant no.1 in favour of defendant No.3. 7. The trial Court, after perusal of the entire records, has held that though the plaintiffs have proved the execution of sale agreement dated 5.5.1994, the original plaintiff has failed to prove that he was/is always ready and willing to perform his part of contract and held that - 10 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 the suit filed by the plaintiff is barred by limitation. The perusal of the recital of the sale agreement, discloses that the time was the essence of the contract, the plaintiff had to perform his part of obligation on or before 30.12.1994. From 1994 till 2006 i.e., till issuing of the legal notice, the plaintiff has not taken any steps to enforce the sale agreement dt.05.05.1994. The plaintiff has failed to establish that he was/is always ready and willing to perform his part of contract. 8. On the other hand, the defendant No.1 has taken a contention that in view of non performance of contract by the plaintiff, defendant no.1 had rescinded the contract and sold the suit schedule property in favour of defendant no.3, though the sale agreement was executed on 5.5.1994, the suit was filed in 2006. Thus, the suit filed by the plaintiff is barred by limitation. The trial Court was justified in dismissing the suit for specific performance of contract. The first Appellate Court, on re-assessment of verbal and documentary evidence, has rightly affirmed the - 11 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 judgment and decree passed by the trial Court. The plaintiff has failed to prove that he was/is always ready and willing to perform his part of contract. The time was the essence of contract. The plaintiff has not filed the suit within three years from 31.12.1994. The plaintiff ought to have filed a suit on or before 30.12.1997. Hence, the suit filed by the plaintiff is barred by limitation. Both the courts below were justified in passing the impugned judgments. I do not find any error in the impugned judgments or any substantial question of law that arise for consideration. 9. Accordingly, the following order is passed :
Decision
ORDER The appeal is dismissed; The judgments and decrees passed by the courts i) ii) below are hereby confirmed. No order as to costs. - 12 - NC: 2025:KHC:13143 RSA No. 1674 of 2024 In view of the dismissal of the appeal, I.A.2/24 does not survive for consideration and is, accordingly, dismissed. Sd/- (ASHOK S.KINAGI) JUDGE rs List No.: 1 Sl No.: 33