Karnataka High Court
T P Vishal Gowda vs H P Ganapathi on 16 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO.779 OF 2014 (MON)
BETWEEN:
1. T. P. VISHAL GOWDA
S/O. PUTTAPPA GOWDA,
AGED ABOUT 65 YEARS.
2. T.P. SHIVANANDA GOWDA
S/O PUTTAPPA GOWDA,
AGED ABOUT 59 YEARS.
3. T.V ASHOK KUMAR
S/O LATE VEERAPPA GOWDA,
AGED ABOUT 55 YEARS.
THE APPELLANTS NO.1 TO 3 ARE
AGRICULTURISTS AND
RESIDENTS OF TATTUR VILLAGE,
ANAVATTI HOBLI, SORAB TALUK,
SHIMOGA DISTRICT -577433. ...APPELLANTS
(BY SRI.UMESH MOOLIMANI, ADVOCATE FOR
SRI.S.V.PRAKASH, ADVOCATE FOR APPELLANT NO.1
SRI.H.S.SANTOSH, ADVOCATE FO APPELLANT NOS. 2&3)
AND:
1. H. P. GANAPATHI
S/O PARASAPPA,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURE & FOREST CONTRACTOR,
R/O 5TH CROSS, NEHRU NAGAR,
SAGAR TOWN - 577401.
2
2. SMT. CHANDRALEKHA
AGED ABOUT 62 YEARS,
W/O LATE SRIKANTA GOWDA,
R/O OLD TATTUR VILLAGE,
TATTUR POST, ANAVATTI HOBLI,
SORAB TALUK - 577433.
3. SMT.NIVEDITHA
AGED ABOUT 40 YEARS,
D/O LATE SRIKANTA GOWDA,
R/O OLD TATTUR VILLAGE,
TATTUR POST, ANAVATTI HOBLI,
SORAB TALUK - 577433.
4. T.R. RAVISHANKAR GOWDA
AGED ABOUT 58 YEARS,
S/O PUTTAPPA GOWDA,
R/O OLD TATTUR VILLAGE,
TATTUR POST, ANAVATTI HOBLI,
SORAB TALUK - 577433.
5. T.V. DEVARAJ
AGED ABOUT 50 YEARS,
S/O LATE VEERAPPA GOWDA,
OCC: PHARMACIST,
R/O KPC RUSSIAN COLONY,
KARGAL, SAGAR TALUK - 577421.
. ...RESPONDENTS
(BY SRI.MAHESH.R.UPPIN, ADVOCATE FOR R-1
R2, R3, R4 AND R5 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD.28.11.2013 PASSED IN
R.A.NO.185/2010 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE, SHIMOGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
24.05.2010 PASSED IN O.S. NO.134/2007 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, SORABA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
3
JUDGMENT
This second appeal is by defendant Nos.1, 2 and 4.
2. The admitted facts are that the plaintiff
entered into an agreement with defendant Nos.1 to 4
whereby, he agreed to purchase the teakwood trees
standing on the land belonging to the defendants and paid
a sum of `1,25,000/- (Rupees One lakh twenty five
thousand only) as advance. It was the case of the plaintiff
that two supplementary agreements were entered into,
whereby, the defendants acknowledged the terms of the
earlier agreement and also undertook to take care of the
claim made by defendant Nos.5 to 6 seeking 1/5th share
over the trees.
3. It was stated that the defendant Nos.5 to 6,
after the trees were cut and removed, opposed the
sanctioning of a permit by the Forest Department to
transport the logs of wood and as a result, the plaintiff
could not lift the logs and suffered a huge loss. He stated
that defendant Nos.5 and 6 had also filed a suit against
him and had restrained him from transporting the
teakwood and in view of the above facts he was entitled
for recovery of money that he had paid along with interest,
which was quantified as Rs.3,84,625/- (Rupees Three lakh
eighty four thousand six hundred twenty five only).
4. Defendant Nos.1, 5 and 6 choose to remain
exparte.
5. Defendant Nos.2 to 4 filed a written statement
whereby, they admitted execution of the agreements. They
sought to contend that it was the responsibility of the
plaintiff to have got the dispute resolved and defendant
Nos.5 and 6 had not committed any breach of contract and
therefore were not liable for the money received by them.
It was also their plea that the suit was barred by time.
6. The Trial Court on consideration of the records
came to the conclusion that in the light of the admitted
fact that the plaintiff could not transport the logs and was
prevented to do so by reason of the claim to be put forth
by defendant Nos.5 and 6, defendant Nos.1 to 4 who had
entered into the agreement were required to refund the
sum of `1,25,000/- (Rupees One lakh twenty five thousand
only) that they had received under the agreement. The
Trial Court accordingly decreed the suit.
preferred an appeal.
8. The Appellate Court on re-appreciation of the
evidence concurred with the findings of the Trial Court and
proceeded to dismiss the appeal.
9. It is against these concurring judgments, the
present second appeal has been preferred.
10. It is not in dispute that the written agreement
was entered into on 05.06.1999 and the same was also
ratified by supplementary agreement dated 04.10.1999. It
is not in dispute that the trees were cut, but, they could
not be removed and transported due to the objections
raised by defendant Nos. 5 and 6. In the light of these
admitted facts, it is clear that the plaintiff was not able to
secure the teakwood that stood on the land of the plaintiff
as contemplated under the agreement.
11. It is not in dispute that defendant Nos.5 and 6,
who are the sisters of defendant Nos.1, 2 and 4, had made
a claim over the trees sold to the plaintiff and prevented
the plaintiff from lifting the teak wood that had been sold
to him. If the performance of the contract was not made
possible due to an act which was not attributable to the
plaintiff, it is obvious that the plaintiff would be entitled for
refund of the sum paid by him under the contract.
12. In the instant case, it is admitted that the
plaintiff was not able to secure the teakwood that had
been promised to him under the terms of the contract
because of the claim made by the sisters of the defendant
Nos.1, 2 and 4. In view of the above, as a necessary
consequence, it is but inevitable that defendant Nos.1 to 4
who had received a sum of Rs.1,25,000/- (Rupees One
lakh twenty five thousand only) towards the sale of the
teak wood would be both legally and morally obliged to
return the same along with interest. It is settled law that a
person who has gained an advantage under an agreement
which was not fulfilled is bound to return the consideration
that he had received under the unfulfilled contract.
13. Both the Courts were therefore absolutely
justified in coming to the conclusion that defendant Nos.1
to 4 were bound to pay the said amount along with
interest.
14. The contention of the learned counsel that the
suit was barred by limitation and that the plaintiff was
required to sue for specific performance of the contract
and not for recovery cannot be accepted for the following
reasons.
15. Firstly, it was not the case of the defendants
that they had refused the performance of the contract. If
at all if the performance of the contract was refused, only
then, the right to sue would accrue to the party entitled to
the specific performance of the contract. If time was fixed
for the performance of the contract, the limitation would
start to run from the date fixed. If, however, no time is
fixed for performance of the contract, the right to sue
would accrue only on a denial and limitation would also run
from the date of refusal.
16. In the instant case, when the defendants did
not set up the plea that they had refused the performance
of the contract, the question of limitation starting to run
from the date of agreement would not arise. The plaintiff
had issued a legal notice prior to the filing of the suit and
in reply to the notice, no contention was advanced by the
defendants that they had refused the performance of the
contract in the year 1999 itself. It is therefore clear that
the plea of limitation cannot be accepted.
17. The second contention that the suit for specific
performance of the contract ought to have been filed and
suit for recovery on money paid under the agreement,
cannot be maintained cannot also be accepted. If the
performance of the contract is not possible due to an act
not attributable to the plaintiff and was solely attributable
to the claim made by the relatives of the defendants, the
plaintiff would be perfectly justified in seeking for recovery
of the money that he had paid under the contract.
18. In view of the above, it is clear that there is no
substantial question of law involved in this second appeal.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
GVP
