Karnataka High Court
Shri.Mahaveer S/O Shankarlal Mehta vs Shri.Dattu And Ors on 27 June, 2024
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NC: 2024:KHC-K:4360-DB
RFA No. 200073 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 200073 OF 2019 (SP)
BETWEEN:
SHRI. MAHAVEER
S/O SHANKARLAL MEHTA
AGE: 54 YEARS, OCC: BUILDER & DEVELOPER,
R/O OPP: KORALLI PETROL PUMP,
OLD ADAT BAZAR, VIJAYAPURA.
...APPELLANT
(BY SRI. ARUN CHOUDAPURKAR , ADVOCATE)
AND:
Digitally signed by
BASALINGAPPA 1. SHRI.DATTU
SHIVARAJ
DHUTTARGAON S/O GURUWAJI AVARNGE ALIAS GOULI
Location: HIGH
COURT OF SINCE DECEASED BY HIS LR'S
KARNATAKA
1.A MALABAI W/O AVARANGE @ GOULI
SINCE DECEASED BY HER LR'S
RESPONDENT NO.1(B)1, 1(B)2, 1(C), 1(D), 1(E),
AND 1(F) AND 1(G) LR'S OF DECEASED
RESPONDENT NO.1(A) ALREADY ON RECORD.
1.B RAMESH
S/O DATTU AVARANGE @ GOULI,
SINCE DECEASED BY HIS LRS
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RFA No. 200073 of 2019
1.B1 SMT. MALAN W/O RAMESH GOULI @ AVARANGE
AGE: MAJOR, OCC: HOUSEHLD
1.B2 APPU S/O RAMESH GOULI @ AVARANGE
AGE: MAJOR, OCC: AGRICULTURE,
BOTH R/O KAWALI GATE,
NEAR SHIVAJI CHOWK, VIJAYAPURA -586 101.
1.C SURESH S/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, NEAR SHIVAJI CHOWK,
VIJAYAPURA- 586 101.
1.D ASHOK S/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, NEAR SHIVAJI CHOWK,
VIJAYAPURA - 586 101.
1.E RAJU S/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, SHIVAJI CHOWK,
VIJAYAPURA- 586 101.
1.F SHAKUNTALA D/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, SHIVAJI CHOWK,
VIJAYAPURA - 586 101.
1.G NAGU D/O DATTU AVARANGE @ GOULI
AGE: MAJOR, OCC: AGRICULTURE,
R/O KOWLI GATE, SHIVAJI CHOWK,
VIJAYAPURA - 586 101.
...RESPONDENTS
(NOTICE TO R1 SERVED;
NOTICE TO R1(B1), R1(B2), R1(C), R1(E), R1(F), R1(G) ARE
HELD SUFFICIENT,
R1(B1), R1(B2), R1(C), R1(D), R1(E), R1(F), AND R1(G)
TREATED AS LR'S OF DECEASED R1(A)
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RFA No. 200073 of 2019
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO ALLOW THE APPEAL, CALL FOR RECORDS AND SET ASIDE
THE IMPUGNED JUDGMENT AND DECREE IN O.S.NO.40/2011
DATED 17.01.2019 ON THE FILE OF THE II ADDL. SENIOR
CIVIL JUDGE AT VIJAYAPURA BY DISMISSING THE PLAINTIFF'S
SUIT. THE APPELLANT PRAYS TO AWARD THE COSTS
THROUGHOUT FROM THE RESPONDENTS, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed challenging the judgment and decree dated 17.01.2019 passed in O.S.No.40/2011 by the II Additional Senior Civil Judge, Vijayapura.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff. The respondents are the legal representatives of the original defendants.
3. The brief facts leading rising to filing of this appeal are that:
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NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 The plaintiff filed suit for specific performance of contract against the original defendants. It is the case of the plaintiff that, plaintiff is a builder and developer who also deals with real estate business and also an agriculturist. The plaintiff being a builder and developer, also deals in real estate in Karnataka as well as Maharashtra and he was in search of some land in and around Vijayapura city in order to develop the same for residential and commercial purpose. The plaintiff approached original defendant and requested to sell the suit schedule property. The defendant offered to sell the suit land to the plaintiff for consideration of Rs.8,15,000/- per acre and plaintiff agreed to purchase the suit land for the said price. Accordingly, on 30.09.2008, a written agreement of sale was executed between plaintiff and the defendant, and on the said date the plaintiff paid a sum of Rs.2,50,000/- cash towards earnest money at the time of execution of agreement of sale. The legal representatives of the defendant were also present at the time of execution of an agreement of sale. As per the terms and -5- NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 conditions of the agreement of sale, another Rs.2,50,000/- was supposed to be paid by the plaintiff to the defendant after fifteen days of Deepavali festival of that year and thereafter within 9 months, the defendant was to get separate PT sheet and extent of land in his name and execute a registered sale deed in favour of the plaintiff. On 07.11.2008, the defendant's son by name Ashok came to the office of the plaintiff and requested for payment of remaining balance consideration amount i.e., Rs.1,00,000/- since the defendant's family was in urgent need. The plaintiff had paid a sum of Rs.1,00,000/- to Ashok and again on 07.01.2009, Rs.1,50,000/- was paid through cheque in the name of Ashok, Raju and Suresh.
On 07.01.2009, the plaintiff paid a sum of Rs.5,00,000/- to the defendant and his sons. After making payment, the plaintiff started asking the defendant to get PT sheet separate and to execute a registered sale deed by receiving the balance consideration amount. The defendant promised to execute a registered sale deed, but there was no progress took place. Hence, the plaintiff got -6- NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 issued a legal notice through his advocate and the said notice was duly served on the legal representatives of the defendant. The legal representatives of defendant neither replied to the legal notice nor received the balance consideration amount and executed a registered sale deed. Thus, the cause of action arose for the plaintiff to file a suit for specific performance of contract.
4. The defendant No.1(c) filed written statement denying the averments made in the plaint. However, admitted that the defendant is the owner of the suit schedule property and the said suit schedule property is the ancestral property of the defendant and his brothers and the said land has not yet been partitioned for separate possession and a suit for partition and separate possession is pending before the trial Court in FDP No.25/2010. It is contended that defendant is having only 1/4th joint share in the suit agricultural land bearing Sy.No.836 along with other family properties. It is denied that, the plaintiff offered to purchase the suit land for sale consideration of -7- NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 Rs.8,15,000/- per acre and the defendant accepted the offer of the plaintiff and the plaintiff paid a sum of Rs.2,50,000/- as advance payment as on the date of execution of an agreement of sale and also denied that the plaintiff has made payment on different occasions in the name of Ashok, Raju and Suresh. It is contended that the plaintiff taking an undue advantage of the illiteracy of the defendant has obtained signatures on the blank papers and misused the blank papers and got filed the present suit.
5. It is contended that the defendant's neighbour agreed to sale the suit schedule property for the aforesaid sale consideration. It is contended that they have borrowed a sum of Rs.50,000/- from the plaintiff and it is the loan transaction and it is not a sale consideration. Hence, there is no cause of action to file the suit. The cause of action shown in the plaint is false and imaginary. Hence, on these grounds prayed to dismiss the suit. -8-
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6. The trial Court on the basis of the pleadings of the parties framed the following issues:
i. Whether the plaintiff proves that, deceased defendant No.1 executed an agreement of sale dated 30.09.2008 agreeing to sell the suit property or the consideration amount of Rs.8,15,000/- per acre as alleged ?
ii. Whether plaintiff further proves that, he has paid substantial amount out of the total consideration as earnest money under deferent dates as being alleged?
iii. Whether Plaintiff proves that he is ever ready and willing to perform his part contract? iv. Whether defendants prove that their signatures are obtained by the Plaintiff on blank stamp paper in connection with hand loan of Rs.50,000/- which is already repaid to the plaintiff as being contented?
v. What order or decree?
7. In order to substantiate his case, the plaintiff examined himself as PW.1 and got marked 4 documents as Ex.P1 to P4. In rebuttal, the defendant No.1 got -9- NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 examined himself as DW.1 and got marked 2 documents as Exs.D1 and D2. The trial Court after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence answered issue Nos.1 to 4 in the negative and issue No.5 as per the final order. The suit of the plaintiff was dismissed. The plaintiff aggrieved by the dismissal of suit, filed this regular first appeal.
8. In-spite of service of notice, none appears for the respondents in this appeal.
9. Heard the learned counsel appearing for the plaintiff.
10. Learned counsel appearing for plaintiff submits that the trial Court could have considered the admission of defendant No.1(c) in the written statement that the defendants have clearly admitted that they have taken a loan from the plaintiff for a sum of Rs.50,000/- by Ashok, Raju and Suresh and plaintiff issued a cheque in the name of Ashok, Raju and Suresh. The trial Court ought to have
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NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 granted the alternative relief, on the contrary, the trial Court has dismissed the entire suit. Hence, the trial Court has committed an error in dismissing the entire suit. Accordingly, he prays to decree the suit by granting an alternative relief. Hence, on these grounds he prays to allow the appeal.
11. Perused the records and considered the submissions of the learned counsel for the parties. The points that arise for our consideration are; (1) Whether the plaintiff proves that the defendants have executed an agreement of sale in favour of the plaintiff agreeing to sale the suit scheduled property?
(2) Whether the plaintiff proves that he had paid a sum of Rs.50,000/- each to Ashok, Raju and Suresh through cheque?
(3) Whether the plaintiff proves that the judgment and decree passed by the trial Court is arbitrary and erroneous?
(4) What order or decree?
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12. Point Nos.1: In order to substantiate his case, plaintiff examined himself as PW.1 and he deposed that he is carrying real estate business. He approached the defendant and requested to sell the suit scheduled property for a sale consideration of Rs.8,15,000/- per acre and the defendant agreed to sell the suit scheduled property for a sale consideration of Rs.8,15,000/- per acre. Accordingly, the defendant executed an agreement of sale on 30.09.2008 and plaintiff has paid a sum of Rs.2,50,000/- as an advance amount and defendants executed an agreement of sale. In order to establish that the defendant executed an agreement of sale, the plaintiff has produced agreement of sale marked as Ex.P1, which discloses that the defendant had agreed to sell the suit scheduled property for a sale consideration of Rs.8,15,000/- per acre and that the plaintiff has paid a sum of Rs.2,50,000/- as an advance amount to the defendants. Further it was agreed that the sale deed to be executed after the defendants got prepared a PT sheet. Further, in order to establish that the plaintiff has paid a
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NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 sum of Rs.50,000/- each to Ashok, Raju and Suresh, the plaintiff has produced the statement of accounts of the plaintiff which discloses that on 10.02.2009, the plaintiff got issued a cheque bearing No.GT1328263 in the name of Ashok, on 10.02.2009 cheque bearing GT1328264 in the name of Raju and on the same day cheque bearing No.GT1328265 in the name of Suresh and the said cheques were honored. Further, though the defendants have denied the execution of agreement of sale in favour of plaintiff, but the plaintiff except oral testimony of PW.1, plaintiff has not examined any attesting witnesses to the agreement of sale. Hence, the oral testimony of the plaintiff does not prove that the defendant had executed an agreement of sale in favour of the plaintiff. Further the plaintiff has not taken any steps to prove thumb impression of defendant on Ex.P1. The defendant denied his thumb impression on Ex.P1. Hence, the plaintiff has neither taken any steps to examine the attesting witnesses nor has taken any steps to refer Ex.P1 to the thumb impression to the expert. Thus, the plaintiff has failed to
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NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 establish that the defendant had executed an agreement of sale in favour of plaintiff by virtue of Ex.P1. In view of the above discussion, we answer point No.1 in the negative holding that the plaintiff has failed to prove that defendant had executed an agreement of sale in favour of plaintiff agreeing to sell the suit scheduled property for sale consideration of Rs.8,15,000/- per acre.
13. Point Nos.2 and 3: These two points are interlinked with each other and hence they are taken up together for common discussion in order to avoid repetition of facts.
14. It is the case of the plaintiff that the plaintiff has paid a sum of Rs.2,50,000/- towards advance amount and thereafter paid Rs.1,00,000/- to Ashok on 07.11.2008, and Rs.1,00,000/- on 07.01.2009 and Rs.50,000/- each in favour of Ashok, Raju and Suresh on 07.01.2009 and the said cheques was got encashed by Ashok, Raju and Suresh on 10.02.2009. In order to substantiate the contention of the plaintiff, the plaintiff has
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NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 produced the statement of accounts of ING Vysya Bank marked as Ex.P2 wherein the plaintiff is having an account in the said bank, which discloses that the plaintiff had issued three cheques separately in the name of Ashok, Raju and Suresh and they got encashed the said cheques. The trial Court has not considered Ex.P2 and further the defence of the defendant No.1(c) in the written statement stated that defendants have borrowed hand loan from the plaintiff for Rs.50,000/-. The admission of the defendant in the written statement is sufficient to hold that the defendant Nos.1(c), 1(d) and 1(e) i.e., Ashok, Raju and Suresh have taken amount from the plaintiff. At least, the trial Court ought to have granted relief to the extent of Rs.1,50,000/- on the contrary, the trial Court has dismissed the suit holding that the plaintiff has failed to establish the payment of earnest amount. The said finding recorded by the trial Court is contrary to Ex.P2. The plaintiff by producing Ex.P2 has proved that he has paid a sum of Rs.50,000/- each to Ashok, Raju and Suresh. But the plaintiff has not produced the records to show that he
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NC: 2024:KHC-K:4360-DB RFA No. 200073 of 2019 has paid a sum of Rs.2,50,000/- and as on the date of execution of agreement of sale on 07.01.2009, he has paid a sum of Rs.1,00,000/- to Ashok and Rs.1,00,000/- to Suresh. The trial Court was justified in recording a finding that the plaintiff has failed to establish that in all he has paid a sum of Rs.5,00,000/-. From the perusal of Ex.P2, plaintiff has proved that he has paid a sum of Rs.1,50,000/- to Ashok, Raju and Suresh. Thus, the plaintiff has proved that that he has paid a sum of Rs.1,50,000/- to Ashok, Raju and Suresh and the said transaction is not a sale transaction, but it is loan transaction as alleged by the legal representatives of the defendant. Further no document is produced to show the amount of Rs.1,50,000/- was paid to the plaintiff. It is not the case of the defendant that legal representatives of the defendant repaid the amount. The trial Court ought to have granted relief of recovery of money of Rs.1,50,000/- instead of dismissing the entire suit. In view of the above discussion, we answer point No.2 partly affirmative.
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15. As we have already recorded point No.2 in favour of the plaintiff holding that the plaintiff has established that he has paid a sum of Rs.1,50,000/- to Ashok, Raju and Suresh. The trial Court committed an error in dismissing the entire suit. In view of the above discussion, we answer Point No.3 partly affirmative.
16. Point No.4: In view of the above discussion, we proceed to pass the following:
ORDER
(a) The appeal is allowed with cost.
(b) The judgment and decree dated
17.01.2019 passed in O.S.No.40/2011 by the II Addl.
Senior Civil Judge Vijayapura, is set aside.
(c) The suit of the plaintiff is partly decreed.
(d) The legal representatives of the
defendant are directed to refund the
amount of Rs.1,50,000/- with
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RFA No. 200073 of 2019
interest @ 6% p.a. from the date of
suit till realization of amount.
No order as to the costs.
Sd/-
JUDGE
Sd/-
JUDGE
List No.: 1 Sl No.: 29
CT;BN
Paragraph Nos.1 to 3 HKV
4 to 16 MSR