Karnataka High Court
Bandopant Bharma Badvannache, Age 59 ... vs Dr Jyoti Ajay Dabholkar, Age Major on 26 July, 2024
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NC: 2024:KHC-D:10673
RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5234 OF 2008 (SP)
C/W
REGULAR SECOND APPEAL NO. 5651 OF 2010 (PAR)
REGULAR SECOND APPEAL NO. 100966 OF 2023 (POS)
IN RSA.NO.5234/2008
BETWEEN:
1. SHRI BANDOPANT
S/O. BHARMA BADAVANACHE,
AGE: 57 YEARS, OCC: BUSINESS,
R/O.4196/1A/1, KACHERI ROAD,
BELGAUM.
2. SHRI PRASHANT
S/O. BANDOPANT BADAVANACHE,
AGE: 32 YEARS, OCC: BUSINESS,
R/O.4196/1A/1, KACHERI ROAD,
Digitally
signed by BELGAUM.
BHARATHI S
Location: 3. SHRI PRAMOD
HIGH
COURT OF S/O. BANDOPANT BADAVANACHE,
KARNATAKA AGE: 29 YEARS, OCC: BUSINESS,
R/O.4196/1A/1, KACHERI ROAD,
BELGAUM.
...APPELLANTS
(BY SRI. B.S. KAMATE, ADVOCATE)
AND:
SMT. SHAILAJA W/O. LAXMIKANT KAMAT,
SINCE DECEASED BY HER LR'S.
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NC: 2024:KHC-D:10673
RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
1. SMT. JYOTI
W/O. AJAY DABOLKAR,
AGE: 40 YEARS, OCC: SERVICE,
R/O. BUDHAWARPETH, TILAKWADI,
BELGAUM-590001.
2. SMT. DEEPA @ TRUPTI
W/O. SANJAY DARESHWAR,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O. BUDHAWARPETH, TILAKWADI,
BELGAUM-590001.
...RESPONDENTS
(BY SRI. SACHIN P. BICHU ASSOCIATES, FOR R1 & R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 08.09.2008 PASSED BY THE LEARNED I ADDITIONAL
DISTRICT JUDGE, BELAGAVI IN R.A.NO.21/2007 AND THE
JUDGMENT AND DECREE DATED 06.03.2007 PASSED BY THE
LEARNED I ADDITIONAL CIVIL JUDGE (SR.DN.), BELAGAVI IN
O.S.NO.139/2003 AND FURTHER THE SUIT OF THE PLAINTIFFS IN
O.S.NO.139/2003 MAY KINDLY BE DECREED AS PRAYED FOR BY
ALLOWING THIS RSA WITH COSTS.
IN RSA NO. 5651/2010
BETWEEN:
1. BANDOPANT BHARMA BADVANNACHE,
AGE: 59 YEARS,
OCC: BUSINESS,
2. PRASHANT BANDOPANT BADVANNACHE,
AGE: 32 YEARS,
OCC: BUSINESS,
3. PRAMOD BANDOPANTH BADVANNACHE,
AGE: 30 YEARS,
OCC: BUSINESS,
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NC: 2024:KHC-D:10673
RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
ALL RESIDENTS OF CTS NO.4196/1A/1,
KACHERI ROAD,
BELGAUM-590001.
...APPELLANTS
(BY SRI. GIRISH B. MANGANNAVAR, ADVOCATE)
AND:
1. DR. JYOTI AJAY DABHOLKAR,
AGE: MAJOR, OCC: SERVICE,
R/O. BHUDAWAR PETH,
THILKAWADI-590006.
2. MRS. TRUPTI SANJAY DHARESHWAR,
AGE: MAJOR, OCC: SERVICE,
R/O. 94, STEPHENSENS ROAD,
MOUNT WAVERLEY, MELBORNE,
AUSTRALIA THROUGH HER GPA HOLDER,
DR. JYOTI AJAY DABHOLKAR.
...RESPONDENTS
(BY SRI. SACHIN P. BICHU ASSOCIATES FOR C/R1 AND 2)
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC.,
ALLOW THE ABOVE R.S.A. SET ASIDE THE IMPUGNED JUDGMENT &
DECREE DATED: 25-06-2010 PASSED BY THE LEARNED II ADDL.
CIVIL JUDGE (SENIOR DIVISION), BELGAUM IN R.A.NO.183/2008
AND ALSO THE JUDGMENT AND DECREE DATED DATED:13-08-2008
PASSED BY THE LEARNED III ADDITIONAL CIVIL JUDGE (JUNIOR
DIVISION) BELGAUM AS ILLEGAL; AND THUS DISMISS THE SAID
SUIT FILED BY THE RESPONDENTS-PLAINTIFFS.
IN RSA NO. 100966/2023
BETWEEN:
1. SMT. JYOTI W/O. AJAY DABOLKAR,
AGE: 56 YEARS, OCC: SERVICE,
R/O. BHUDWAR PETH, BELAGAVI,
DIST: BELAGAVI-590006.
2. SMT. TRUPTI W/O. SANJAY DHARESHWAR,
AGE: 53 YEARS, OCC: SERVICE,
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NC: 2024:KHC-D:10673
RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
R/O. P/O. 94, STEPHENSENS ROAD,
MOUNT WAVERLEY, MELBOURNE,
AUSTRALIA,
(THROUGH HER G.P.A. HOLDER
DR. JYOTI AJAY DABHOLKAR)
...APPELLANTS
(BY SMT. AFSHAN A. SHABASHKHAN &
SRI. AMEERAHMED BAGALI, ADVOCATES)
AND:
1. SHRI. BANDOPANT BHARMA BADAVANACHE,
AGE: 72 YEARS, OCC: BUSINESS,
2. SHRI. PRASHANT BANDOPANT BADVANACHE,
AGE: 45 YEARS, OCC: BUSINESS,
3. SHRI PRAMOD BANDOPANT BADVANACHE,
AGE: 43 YEARS, OCC: BUSINESS,
ALL ARE R/O. CTS NO.4196/1A/1,
KACHERI ROAD,
BELAGAVI-590002.
...RESPONDENTS
(BY SRI. B.S. KAMATE, ADV. FOR R1-R3)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, PRAYING TO SET ASIDE/MODIFY TO THE EXTENT OF
THE FUTURE MESNE PROFIT WHICH HAS BEEN REDUCED FROM
RS.2500/- TO RS.300/P.M. BY THE II ADDITIONAL CIVIL
JUDGE(SR.DN) BELAGAVI IN R.A.NO.183/2008 DATED 25-06-2010
AND ENHANCE/GRANT THE MESNE PROFIT OF RS.15,000/-P.M.
SINCE NOVEMBER 2002 TILL HANDING OVER THE VACANT
POSSESSION OF THE SUIT PROPERTY TO THE
PLAINTIFFS/APPELLANTS IN THE ENDS OF JUSTICE AND EQUITY
AND ETC.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:10673
RSA No. 5234 of 2008
C/W RSA No. 5651 of 2010
RSA No. 100966 of 2023
JUDGMENT
1. RSA No.5234/2008 is filed under Section 100 of the Code of Civil Procedure, 19081 by the plaintiffs challenging the judgment and decree dated 08.09.2008 passed in R.A.No.21/2007 by the I Additional District Judge, Belgaum2 and the judgment and decree dated 06.03.2007 passed in O.S.No.139/20033 by the I Addl. Civil Judge (Sr.Dn.), Belgaum4, whereunder the suit for specific performance filed by the plaintiffs has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.
2. RSA No.5651/2010 is filed under Section 100 of CPC by the defendants challenging the judgment and decree dated 25.06.2010 passed in R.A.No.183/2008 by the II Addl. Civil Judge (Sr.Dn.), Belgaum2 and the judgment and decree dated 13.08.2008 passed in 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'first appellate Court' 3 Hereinafter referred to as the 'Suit for Specific Performance' 4 Hereinafter referred to as the 'Trial Court' -6- NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 O.S.No.295/20075 by the III Addl. Civil Judge (Jr.Dn.), Belgaum3, whereunder the suit for possession and recovery of rent has been decreed by the Trial Court and in the first appeal, the First Appellate Court has modified the judgment of the Trial Court with regard to the quantum of mesne profits.
3. RSA No.100966/2023 is filed under Section 100 of CPC by plaintiff No.1 in the suit for possession challenging the judgment and decree dated 25.06.2010 passed in R.A.No.183/2008 by the II Addl. Civil Judge (Sr.Dn.), Belgaum2 reducing the mesne profits awarded by the Trial Court.
4. Since in all the appeals, parties are the same and property which is the subject matter of appeals is the same, all the appeals are taken up for consideration together.
5. The relevant facts necessary for consideration of the present appeals are that one Laxmikanth 5 Hereinafter referred to as the 'Suit for eviction and mesne profits' -7- NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 Vishnupant Kamat6 was the owner of first floor of property bearing No.4196/1/A/1 at Kacheri Road, Belgaum consisting of three rooms7. That one Bandopant Bharma Badavanache8 was a tenant in occupation of the suit property from the year 1989 on a monthly rent of Rs.300/- and was running a business under the name and style of Laxmi Printing Press in the suit property.
6. That the deceased owner and the tenant along with his sons Prashant Bandopant Badavanache and Pramod Bandopant Badavanche9 entered into an Agreement of Sale dated 01.07.1997 whereunder the deceased owner agreed to sell the suit property to the Agreement holders for a total sale consideration of Rs.70,000/- and an advance of Rs.15,000/- was paid as on the date of the said Agreement. That the said sale transaction was required to be completed within four months. It is specifically stipulated that the tenant is not 6 Hereinafter referred to as 'deceased owner' 7 Hereinafter referred to as 'suit property' 8 Hereinafter referred to as 'tenant' 9 Hereinafter referred to as 'Agreement holders' -8- NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 liable to pay rent for the said period of four months and in the event the transaction extends beyond the stipulated period, the tenant will be liable to pay the rent.
7. It is further forthcoming that the deceased owner had issued a legal notice dated 08.10.2002 to the tenant calling upon him to quit, vacate and handover the vacant possession of the suit property. A reply notice dated 27.11.2002 was issued in response to the legal notice dated 08.10.2002. The deceased owner died on 13.10.2002. Thereafter, the legal representatives of the deceased owner10 filed HRC No.36/2003 against the tenant for vacant possession. The Agreement holders filed a suit for specific performance on 31.05.2003. HRC No.36/2003 having been dismissed the legal representatives of the deceased owner filed O.S. No.295/2007 on 19.04.2007 seeking for vacant possession and mesne profits.
8. It is the case of Agreement holders in the suit for specific performance that pursuant to the 10 Hereinafter referred to as the 'present owners' -9- NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 Agreement and the advance of `15,000/- paid on the said Agreement, a further sum of `9,000/- as advance sale consideration has been paid, these amounts have been paid after the expiry of four months from the Agreement. That Agreement holders were always ready and willing to complete the sale transaction and that the deceased owner, on one pretext or the other was not coming forward to execute the Sale Deed due to various reasons including his ill health.
9. It is the case of the present owners that the further amount of `9,000/- paid after the expiry of four months from the date of the Agreement was rent paid by the tenants for use and occupation of the premises having regard to the specific stipulation contained under the said Agreement regarding the same. It is the further contended that the tenancy having been terminated, the Agreement holders are liable to quit, vacate and handover the vacant possession of the suit property.
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023
10. Oral and documentary evidence have been adduced by both the parties in both suits.
11. The trial Court dismissed the suit for specific performance which was affirmed by the first appellate Court. Being aggrieved, the Agreement holders have filed RSA No.5234/2008.
12. The suit for possession and mesne profits has been decreed by the trial Court directing the defendants therein/Agreement holders to handover vacant possession of the suit property within 60 days and it was further held that they are liable to pay mesne profits @ `300/- per month from November 2002 till date of decree and further mesne profits @ `2500/- from the date of the decree till the date of handing over of the vacant possession. In the appeal filed by the Agreement holders challenging the decree for possession awarded by the trial Court, the first appellate Court modified the decree of the trial Court by confirming the order to vacate and handover the vacant possession of
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 the suit property. However, the order directing payment of mesne profits was modified and it was held that the defendants therein are liable to pay mesne profits @ `300/- per month from November 2002 till date of handing over the possession of the suit property. Being aggrieved, the defendants therein/tenants have filed RSA No.5651/2010. The present owners have filed RSA No.100966/2023 challenging the finding of the first Appellate Court interfering with the order of mesne profit made by the Trial Court.
13. Vide order dated 07.09.2012, RSA No.5234/2008 and RSA No.5651/2008 have been admitted and following substantial questions of law has been framed:
In RSA No.5234/2008
a. Whether the Lower Appellate Court has committed an error in dismissing the appeal by confirming the findings of the trial Court on the issue of readiness and willingness though it has clearly held that the time was never intended to be made as
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 essence of contract and the suit filed by the plaintiffs is in time?
b. Whether the Courts below have committed an error in holding that the plaintiffs have failed to prove their readiness and willingness to perform their part of agreement on the ground that the payments made subsequent to the agreement of sale on different dates are not out of the balance sale consideration of Rs.55,000/-?
c. Whether the Courts below are justified in law in holding that the amount of Rs.9,000/- paid subsequent to the sale agreement are not the part of sale consideration amount even through the defendants failed to prove that the said payments were towards rent of the premises by adducing any evidence on record?
d. Whether the Lower Appellate Court is justified in law in dismissing the appeal filed by the Appellants/Plaintiffs and confirming the judgment and decree passed by the trial Court?
e. That under the facts and circumstances of the case whether the Courts below are justified in dismissing the suit filed by the appellants/plaintiffs?In RSA No.5651/2010
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023
1. Whether the court below is justified in law and on facts in directing the defendants-appellants to hand over vacant possession of the suit schedule property to the respondents-defendants without noticing that the proceedings for specific performance of the agreement of sale dated 1.7.1997 is now pending in RSA No.5234/2008 on the file of this Hon'ble Court?
2. Whether court below is justified in law and on facts is awarding mesne profits at the rate of Rs.300/- p.m. from November 2002 even though it is recited in the agreement of sale dated 1.7.1997 that from that day onwards, the rental agreement has been cancelled?
14. Vide order dated 23.07.2024 RSA No.100966/2023 has been admitted to consider the following substantial question of law:
"Whether the reduction by the First Appellate Court of their future mean profits of `2500/- awarded by the Trial Court is erroneous and contrary to the material available on record?"
15. Learned counsel, Sri.B.S.Kamate appearing for the Agreement holder who is the appellant in RSA No.5651/2010 and RSA No.5234/2008 contends that the execution of the Agreement of Sale and payment of advance amount of ` 15,000/- are undisputed. It is further contended that in
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 addition to the said advance amount of `15,000/-, the Agreement holders have paid further sum of `9,000/- on various dates which, in terms of the finding of the First Appellate court is towards partial consideration. Hence, it is vehemently contended that the Agreement holders were always ready and willing to complete the sale transaction and due to the ill-health of the deceased owner, the sale transaction could not be completed. Hence, it is contended that the suit for specific performance is liable to be decreed and the suit for possession is liable to be dismissed. He further contends that the termination of tenancy by the present owners is not proper and the suit for eviction is liable to be dismissed. Hence, he seeks for allowing of the above appeals and granting of the relief sought for.
16. Per contra, Smt.Afshan A Shabashkhan learned counsel appearing for the present owners justifies dismissal of the suit for specific performance and decreeing of the suit for possession and submits that the Agreement of Sale having been executed on 01.07.1997 and the sale transaction having been required to be completed within four months, the deceased owner issued notice on 08.01.2002 and only
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 consequent to the same, the Agreement holders issued notice dated 27.11.2002. The said fact itself demonstrates that the suit is barred by time and the agreement holder was not ready and willing to complete the sale transaction. It is further contended that additional amount of `9,000/- paid is not towards further sale consideration and is towards rent having regard to the specific clause mentioned in the agreement in that regard. It is further contended that the tenancy has been terminated in accordance with law and the decree granted in the suit for eviction is just and proper. With regard to mesne profits, it is contended that the reduction of mesne profits by the First Appellate Court is erroneous and the same is liable to be set aside.
17. The submissions of both the learned counsels have been considered and the material on record including the records of the Trial Court and the First Appellate Court in both the suits have been perused.
18. The following is the admitted fact situation:
i) That the tenant has been in occupation of the suit property from 1.1.1989 under the
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 deceased owner on a monthly rent of `300/-;
ii) That the deceased owner and the tenant and his sons entered into an Agreement of Sale dated 01.07.1997, agreeing to sell the suit property for a total sale consideration of `70,000/- and he received an advance of `15,000/- on the date of the said Agreement. The balance sale consideration payable was `55,000/-;
iii) The original owner died on 13.10.2002;
iv) The deceased owner got issued legal notice dated 08.10.2002 (Ex.P21 in OS No.139/2003) which was replied by the tenant and his sons/agreement holders vide reply notice dated 27.11.2012 (Ex.P22 in OS No.139/2003).
19. Apart from advance amount of `15,000/-, the agreement holders have paid the following amounts:
a) `2,000/- on 11.12.1998
b) `2,000/- on 12.09.1999
c) `1,000/- on 14.10.1999
d) ` 2,000/- on 22.12.1999 by cheque No.085764
e) `2,000/- on 12.02.2004 by cheque No.086403
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 Total `9,000/-
20. It is pertinent to notice the relevant clauses in the Agreement dated 31.05.2003 (Ex.P1) which are extracted herein below for ready reference:
"Party No. I had taken out the above said premises for sale and Party No. II has readily come forward to purchase the said premises. The sale consideration agreed to between Party No. I and II is Rs. 70,000/- (Rupees seventy thousand only) out of the total consideration of Rs.70,000/- Party No. II has today paid an earnest money of Rs.15,000/- (Rupees Fifteen thousand only) to Party No.I the payment of Rs.15,000/- of earnest money is acknowledged by the Party No. I under this Agreement of Sale and therefore no separate receipt is passed.
From the month of July, 1997 Party No. II is not liable to pay any rent to Party No. I since their possession is not as a tenant provided payment is made within the said period as agreed under this Agreement of Sale.
The Municipal Tax of the said CTS No. will have to be got by Party No. I proportionately in respect of the premises involved in this case and pay it to the City Corporation of Belgaum. The responsibility of payment of Corporation Tax is entirely on Party No. II.
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 There is already a Water Tap connection and electric connection to the said premises which are standing in the name of Party No. II. Henceforth Party No. II has to pay tap water charges and electric charges separately. No responsibility in this regard is cast on Party No. I. The period for completion of the Sale Deed is fixed at 4 months from today when Party No. II has to pay the balance sale consideration amount and get the sale deed executed at his own cost, namely Stamp Duty, Registration Fees, writing charges etc."
(emphasis supplied)
21. The legal notice dated 08.10.2022 (Ex.P21 in O.S. No.139/2003) has been issued by the deceased owner to the Agreement holders notifying that the balance sale consideration of `55,000/- has not been paid under the Agreement. That the deceased owner is ready to repay the advance amount of `15,000/- upon the Agreement being returned. The deceased owner has further terminated the said Agreement of Sale dated 01.07.1997.
22. A legal notice dated 08.10.2022 (Ex.P3 in O.S. No.295/2007) has been issued by the deceased owner to the tenant terminating the tenancy as on 31.10.2002 and called
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 upon him to handover the vacant possession of the property under his occupation on 1.11.2002. The said legal notice (Ex.P3) has returned with postal endorsement as "not claimed".
23. Reply notice dated 25.11.2022 (Ex.P22 in O.S. No.139/2003) has been issued by the Agreement holders to the legal notice (Ex.P21) denying that they were not ready and willing to pay the balance sale consideration and further contending that they had paid of `9,000/- as further sale consideration. It is further contended that they were ready and willing to complete the sale transaction.
24. Reply notice dated 26.11.2022 (Ex.P9 in O.S.No.295/2007) has been issued in reply to the notice dated 08.10.2022 (Ex.P3 in O.S. No.295/2007).
25. It is relevant to note that the original owner died on 13.10.2002 and prior to his death, he got issued a legal notice dated 08.10.2002 (Ex.P.21 in O.S.No.139/2003), whereunder it is stated regarding giving the suit property on monthly rent of `300/- from 01.01.1989, as also regarding execution of the Agreement of Sale dated 01.07.1997 for a total sale consideration of `70,000/- and receipt of advance of `15,000/-.
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 That the balance sale consideration of `55,000/- was to be paid within four months. It is further stated that if the said amount was not paid, then the Agreement holders would pay rent after four months and accordingly, the rent has been paid up to June-1998. It is further stated in the said notice that the balance sale consideration `55,000/- has not been paid and that the Agreement holder was not ready and willing to pay balance sale consideration as per the said agreement and hence the owner intends to terminate the agreement and repay the advance amount of `15,000/- on the Agreement holders returning the original agreement. Hence, the agreement dated 01.07.1997 has been terminated and the Agreement holders have been called upon to return the original agreement and take `15,000/- from the owner within 15 days.
26. It is further relevant to note that in the reply notice dated 27.11.2002 (Ex.P.22 in O.S. No.139/2003) the Agreement holders have stated that they are ready and willing to perform their part of agreement by paying the balance sale consideration. It is further stated that the Agreement holders have paid further amounts out of the balance sale consideration of `55,000/- and they are ready to pay the remaining amount.
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 It is further stated that the Agreement holders had approached the owner for the purpose of completing the sale transaction; however, he expired. It is further stated that the termination of Agreement of Sale dated 01.07.1997 is not proper and hence the present owners were called upon to receive the balance sale consideration and execute the registered Sale Deed within 7 days.
27. It is also pertinent to note that the deceased owner had also got issued a legal notice dated 08.10.2002 (Ex.P.3 in O.S.No.295/2007), whereunder he intimated first the tenant regarding the fact that the premises was under his occupation on monthly rent of `300/- and the rent has been paid up to June-1998. Hence, the rent for the period from June-1998 to September-2002 that is for the period of 51 months has been demanded. It is further stated in the said notice that the tenancy has been terminated and the tenant has been called upon to handover possession of the suit property to the owner on 01.11.2002. The postal receipt for having dispatched the said notice is marked as Ex.P.4 and the returned postal cover with the endorsement as "not claimed" is marked as Ex.P.5. The present owners filed HRC No.36/2003 was filed on
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 07.04.2003 as is forthcoming from a copy of petition (Ex.P.18 in O.S. No.295/2007). Subsequently, the said HRC petition having been dismissed, the present owners have filed O.S.No.295/2007 on 19.04.2007 for eviction and for mesne profits.
28. The Agreement holders filed O.S No.139/2003 on 31.05.2003 for specific performance of the agreement of sale. The suits having been contested, as noticed above. The Trial Court has dismissed the suits for specific performance, which has been affirmed by the First Appellate Court.
29. The suit for eviction having been decreed, and the defendants have been ordered to pay mesne profits at `300/- per month from the date of suit till date of decree and thereafter, `2,500/- from the date of decree till date of vacant possession. In the appeal filed by the Agreement holders, the First Appellate Court has partly allowed the appeal modifying the order for payment of mesne profits by holding that the mesne profits is payable at the rate of `300/- from the month of November-2002, till handing over of vacant possession of the suit property.
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023
30. It is clear and forthcoming from the aforementioned that the agreement of sale (Ex.P1) has been admittedly executed on 01.07.1997 and an advance of `15,000/- has been paid on the said date. Although, it is the contention of the Agreement holders that a further amount of `9,000/- has been paid on the subsequent dates, having regard to the specific clause in the agreement (Ex.P1), the exemption for the tenant to pay rent was only for the agreed term for completion of the agreement i.e., four months.
31. After execution of the agreement, the five payments that have been made are, on 11.12.1998, 12.09.1999, 14.10.1999, 22.12.1999 and 12.2.2004. It is relevant to note that the last date on which the said payments are made was a payment of `2,000/- on 12.02.2004. However, the payment prior to the same was made on 22.12.1999 of `2,000/-. It is further relevant to note that there are no material on record that the said amounts have been received by the owner as part sale consideration.
32. Subsequent to the agreement dated 01.7.1997 (Ex.P1), although it has been stated that the Agreement
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 holders have been repeatedly contacting the owner of the suit property to complete the sale transaction, there is no material on record to indicate that any written notice was issued by the Agreement holders to the owner calling upon him to complete the sale transaction. The first written notice after execution of the agreement dated 01.07.1997 (Ex.P1), is the notice dated 08.10.2002 (Ex.P21), whereunder, the owner has terminated the agreement and called upon the Agreement holders to return the original agreement and take refund of an advance amount of `15,000/-, as well as the notice dated 08.10.2002 (Ex.P3), whereunder, the tenancy of the tenant was terminated. It is only consequent to the said notices dated 08.09.2002 that the notice dated 25.11.2002 (Ex.P22) has been issued by the Agreement holders.
33. It is further forthcoming that after filing of HRC No.36/2003, which was filed on 08.04.2003, the Agreement holders filed the suit for specific performance in O.S No.139/2003 on 31.05.2003. There is no explanation whatsoever by the Agreement holders as to what steps were taken to complete the sale transaction between the dates of
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 the agreement i.e., 01.07.97 up to the date of issuance of the legal notice i.e., 25.11.2002.
34. The Trial Court in the suit for specific performance held that the suit is barred by limitation. However, the First Appellate Court recording a finding that further payments of total sum of `9,000/- was paid after the expiry of four months has held that the time was not intended to be made as the essence of the contract and the refusal of performance of the contract was on the issuance of notice dated 08.10.2002 and hence, the suit is filed on 06.08.2003 within the period of limitation. Hence, the First Appellate Court has held that the suit is within time. However, the First Appellate Court has held that there was no readiness and willingness and hence, did not interfere with the finding of the Trial Court.
35. The Trial Court after noticing the oral and documentary evidence on record has dismissed the suit. However, directed refund of the advance amount of `15,000/- together with interest at the rate of 18% per annum.
36. It is clear and forthcoming from the aforementioned that the concurrent findings recorded by both the Courts with
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 regard to readiness and willingness is just and proper and there is no material to demonstrate that the said finding is recorded without considering any specific, oral or documentary evidence on record.
37. The vehement plea made by the learned counsel for the appellants that the Agreement holders were always ready and willing to complete their part of a sale transaction is not liable to be accepted in the absence of any material on record indicating the same as noticed above. The first notice was issued after the agreement dated 11.07.1997 was the notice dated 08.10.2002 by the owner of the property and only thereafter the Agreement holders have got issued the notice dated 25.11.2002.
38. With regard to the finding of the Trial Court in respect of termination of tenancy, it is relevant to note that the notice dated 08.10.2002 (Ex.P3), has been served on the tenant, as it is forthcoming from the postal receipt (Ex.P4) and the returned postal cover (Ex.P5). The tenancy have been terminated and the suit having been filed thereafter, the finding that there has been termination of tenancy is just and proper.
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023
39. The vehement contention of the learned counsel for the appellants that a total amount of `9,000/- was paid as further sale consideration, is also not liable to be accepted, having regard to the fact that there is no material on record to indicate the same. In fact there was a specific stipulation in the agreement (Ex.P1) that the tenant is not liable to pay rent only for a period of the agreement of sale which is four months. Further, the deceased owner vide his notice dated 08.10.2002 (Ex.P21), has specifically asserted that the rent has not been paid from June-1998. In view of the same, the contention of the agreement holder that the further amount of `9,000/- paid is towards further sale consideration is not liable to be accepted.
40. The reliance placed by the learned counsel for the appellants on the finding of the First Appellate Court that, by virtue of further payments, time was not the issuance on the contract, would not enure to the benefit of the Agreement holder for the purpose of recording a finding regarding readiness and willingness as already noticed hereinabove, as also by the Trial Court and the First Appellate Court that there was no material on record that the Agreement Holders notified
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 the deceased owner that they were ready and willing to pay the balance sale consideration and complete the sale transaction.
41. At this juncture, it is relevant to notice the judgment of the Honble Supreme Court in the case of P. Daivasigamani v. S Sambandan11 which states as follows:
"21. Readiness and willingness are not one, but two separate elements. Readiness means the capacity of the plaintiff to perform the contract, which would include the financial position to pay the purchase price. Willingness refers to the intention of the plaintiff as a purchaser to perform his part of the contract. Willingness is inferred by scrutinising the conduct of the plaintiff purchaser, including attending circumstances [ See para 2 in Ganesh Dassji v. Sita Ram Thapar, (1996) 4 SCC 526] . Continuous readiness and willingness on the part of the plaintiff purchaser from the date the balance sale consideration was payable in terms of the agreement to sell, till the decision of the suit, is a condition precedent for grant of relief of specific performance [ See para 5 in N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115. Also see Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-28) 55 IA 360 : AIR 1928 PC 208]."
(emphasis supplied)
42. It is clear from the settled position of law as noticed above that readiness and willingness are two separate aspects. Readiness being financial capacity of the Agreement holder to 11 (2022) 14 SCC 793
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 complete the transaction and willingness relating to the mental aspect as to his willingness to complete the sale transaction. In view of the factual matrix as noticed above, the findings recorded by both the Courts holding that the Agreement holders were not ready and willing to complete the sale transaction is just and proper.
43. Reliance placed by the learned counsel for the appellant on the judgment of the Division Bench of this Court in the case of L.R.Ananth v. Dr.S.Jayaramachandran & Ors.,12 will not aid the case of the appellants since in the facts of the said case the Trial Court had dismissed the suit as being barred by time. This Court, noticing the further payment made recorded a finding that since no date was fixed for performance in the agreement, the suit was within time and remanded the matter to the Trial Court to record its finding on other issues. The fact situation in the said case and the fact situation in the present case is entirely different and the said judgment is wholly inapplicable to the facts of the present case. 12
Judgment dated 19.4.2024 passed in RFA No.707/2016 (SP)
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023
44. With regard to the mesne profits, it is the vehement contention of the present owners that the interference in the order of mesne profits by the First Appellate Court is erroneous.
45. It is noticed that there is no document produced by the owners to indicate that they are entitled to claim mesne profits in excess of agreed rental amount of `300/-. However, it is relevant to note that the agreed rental amount of `300/- was agreed between the parties in the year 1989. In view of the lapse of time, it is just and proper that a higher amount would be payable towards rent by the tenants.
46. In view of the aforementioned, the judgment and decree passed by the Trial Court in the suit for eviction is required to be affirmed and the judgment passed by the First Appellate Court to be set aside.
47. In view of the discussion made above, the substantial questions of law are answered as follows:
i. In RSA No.5234/2008 the substantial questions of law (a) to (e) are answered in the negative;
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 ii. In RSA No.5651/2010 the substantial questions of law Nos.1 and 2 are answered in the affirmative;
and iii. In RSA No.100966/2023 the substantial question of law is answered in the affirmative.
48. Hence, the following:
ORDER i. RSA No.5234/2008 and RSA No.5651/2010 are dismissed.
ii. RSA No.100966/2023 is allowed.
iii. The judgment dated 08.09.2008 passed in R.A No.21/2007 by the I Additional District Judge, Belgaum and the judgment and decree dated 06.03.2007 passed in O.S No.139/2003 by the I Additional Civil Judge (Sr.Dn), Belgaum, are affirmed.
iv. The judgment and decree dated 25.06.2010 passed in R.A No.183/2008 on the file of II
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NC: 2024:KHC-D:10673 RSA No. 5234 of 2008 C/W RSA No. 5651 of 2010 RSA No. 100966 of 2023 Additional Civil Judge (Sr.Dn), Belgaum, is set aside and the judgment and decree dated 13.08.2008 passed in OS No.295/2007 by the III Addl.Civil Judge (Jr.Dn), Belgaum, is affirmed.
v. Ordered accordingly.
SD/-
(C.M. POONACHA) JUDGE BS/SH/PMP List No.: 1 Sl No.: 36