Ashok S/O. Chandrashekharayya ... vs Mahesh S/O. Shivappa Bellatti
2022 Latest Caselaw 1940 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 08TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM


        REGULAR SECOND APPEAL NO.5001 OF 2012 (SP)

BETWEEN

ASHOK S/O. CHANDRASHEKHARAYYA BAZARMATH
AGE: 44 YEARS, OCC: BUSINESS,
R/O. KOPPAL-577201,
TQ AND DIST: KOPPAL.
                                                  ...APPELLANT

(BY SRI. B SHARANABASAWA, ADVOCATE)

AND
MAHESH S/O. SHIVAPPA BELLATTI
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. KAVALUR ONI, KOPPAL-577201,
TQ AND DIST: KOPPAL.
                                                 ...RESPONDENT

(SERVICE HELD SUFICENT)

      THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO SET ASIDE
THE   JUDGEMENT    &   DECREE   DTD:17-09-2011    PASSED   IN
R.A.NO.22/ 2011 PASSED BY THE SENIOR CIVIL JUDGE AT KOPPAL,
AND ALSO THE JUDGMENT DATED 18-02-2011 AND THE DECREE IN
O.S.NO.264/2008 PASSED BY THE CIVIL JUDGE & JMFC., AT
KOPPAL, IN THE INTEREST OF JUSTICE AND EQUITY.
                               2




     THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

The captioned second appeal is filed by unsuccessful

plaintiff, who has suffered concurrent judgment and

decree of the Courts below wherein the suit filed by the

appellant-plaintiff seeking relief of specific performance of

contract is dismissed.

2. Appellant-plaintiff filed a suit for specific

performance in O.S.No.264/2008 by specifically alleging

that respondent-defendant has agreed to sell 5 acres out

of 9 acres of land in survey No.430/1 for total sale

consideration of Rs.2,10,000/- and by receiving earnest

money of Rs.85,000/- has executed an agreement of sale

on 04.08.1999 as per Ex.P1. The appellant's-plaintiff's

specific contention is that throughout he was ever ready

and willing to perform his part of contract and it is the

respondent-defendant, who went on postponing

execution of sale deed on one or the other pretext. The

appellant-plaintiff was compelled to issue legal notice on

07.03.2006 and since the respondent-defendant did not

come forward to perform his part of contract, the

appellant-plaintiff filed a suit for specific performance of

contract and in alternative sought for refund of earnest

money of Rs.85,000/-.

3. On receipt of summons, respondent-defendant

contested the proceedings by filing written statement.

The respondent-defendant has stoutly denied the very

execution of suit agreement and receipt of earnest money

of Rs.85,000/-. Having denied the execution of suit

agreement, however in the latter part of written

statement admitted that he has executed a registered

agreement of sale on 04.08.1999. However, respondent-

defendant contended that the time stipulated in the suit

agreement was six months and therefore, respondent-

defendant contended that appellant-plaintiff was required

to pay the balance sale consideration and thereafter

secure sale deed in time. The Trial Court having assessed

the oral and documentary evidence answered issue No.1

in the affirmative. While dealing with issue No.1, the Trial

Court recorded a finding that the appellant-plaintiff has

proved due execution of suit agreement dated

04.08.1999 and receipt of Rs.85,000/-. However, while

answering issue No.2 and 3, the Trial Court has come to

conclusion that appellant-plaintiff has failed in proving his

readiness and willingness to perform his part of contract

and categorically recorded a finding that the suit is barred

by limitation. Feeling aggrieved by the judgment and

decree of the Trial Court, the appellant-plaintiff preferred

an appeal before the First Appellate Court. The First

Appellate Court having independently assessed the oral

and documentary evidence and having assessed the date

of suit agreement has concurred with the findings

recorded by the Trial Court on issue No.3. The Appellate

Court was also of the view that in terms of Article 54 of

the Limitation Act, the period stipulated to file a suit is

three years from the date fixed for performance of

contract. The First Appellate Court was of the view that

the agreement is dated 04.08.1999 and therefore, the

appellant-plaintiff ought to have filed a suit on or before

04.02.2003. The First Appellate Court was of the view

that the present suit is filed on 10.12.2008. On these set

of reasons, the First Appellate Court has concurred with

the findings recorded by the Trial Court and has

proceeded to dismiss the appeal.

4. The learned counsel appearing for appellant

would vehemently argue and contend before this Court

that substantial sale consideration was paid and since

respondent-defendant has admitted due execution of suit

agreement, he would submit that both the Courts below

have erred in answering issue no. 2 relating to readiness

and willingness of the appellant-plaintiff in negative. He

would also submit to this Court that till legal notice was

issued by appellant-plaintiff, which is dated 07.03.2006,

there was no specific denial by respondent-defendant and

therefore, he would contend that Article 54 of the

Limitation Act would not come to play and the cause of

action accrued only post-issuance of legal notice which is

dated 07.03.2006. In the alternative learned counsel for

the appellant would vehemently argue and contend that

though both the courts below having concurrently

answered issue No.1 in the affirmative but have erred in

not ordering for refund of earnest money, since due

execution of suit agreement is not in dispute.

5. Heard the learned counsel for the appellant-

plaintiff. Perused the judgments under challenge.

6. The appellant-plaintiff is seeking enforcement

of contract and his claim is based on registered

agreement of sale dated 04.08.1999. The material on

record shows that the legal notice was issued on

07.03.2006 and suit is filed on 10.12.2008. Both the

Courts below have concurrently held that the present suit

is barred by limitation. While dealing with issue No.2,

both the courts below have held that the appellant-

plaintiff has failed to prove the readiness and willingness.

The concurrent findings recorded by the courts below on

limitation and readiness and willingness cannot be

examined by venturing into the disputed question of facts

in appeal filed under Section 100 of CPC. Though issue

No.1 is answered in the affirmative, both the courts

below have dismissed the suit on the ground of limitation.

If the suit is barred by law of limitation, even though

issue No.1 answered in affirmative, the same would not

come to the aid of the appellant-plaintiff and question of

granting alternative relief of refund of earnest money

would also not arise as the suit is barred by limitation.

Therefore, no substantial question of law is involved in

the present appeal. Hence, the appeal being devoid of

merits is dismissed.

7. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE YAN