Sri T D Somesh vs Smt H V Veena
2022 Latest Caselaw 1142 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 25TH DAY OF JANUARY, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA

     REGULAR SECOND APPEAL NO.1607 OF 2012 (SP)
                       C/W
     REGULAR SECOND APPEAL NO.819 OF 2014 (SP)


IN R.S.A. NO.1607/2012:

BETWEEN:

1.     SMT. H. V. VEENA,
       W/O SRI. MANJUNATH,
       AGED ABOUT 49 YEARS,
       R/AT ARAVINDANAGAR,
       BASAVANAHALLI,
       CHIKMAGALUR,
       CHIKMAGALUR DISTRICT - 577 101.

2.     SMT. H. V. VANI,
       W/O SRI. SADANANDA,
       AGED ABOUT 45 YEARS,
       R/AT ARAVINDANAGAR,
       BASAVANAHALLI,
       CHIKMAGALUR,
       CHIKMAGALUR DISTRICT - 577 101.

3.     SMT. H. V. INDIRA,
       D/O LATE H.V.VEEREGOWDA,
       W/O SRI. LAXMANA GOWDA,
       AGED ABOUT 40 YEARS,
       R/O BADAVANADINNE VILLAGE,
       KENJIGE POST,
       MUDIGERE TALUK,
       CHIKMAGALUR DISTRICT - 577 132.
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4.     SMT. H. V. SUDHA,
       W/O SRI. E.M. MANJUNATH,
       TEACHER,
       AGED ABOUT 39 YEARS,
       R/AT ELEHOLE VILLAGE,
       JOLADAL POST,
       CHIKMAGALUR TALUK,
       CHIKMAGALUR DISTRICT - 577 101.
                                         ... APPELLANTS

(BY SRI. N.SHANKARNARAYANA BHAT, ADVOCATE)

AND:
SRI. T. D. SOMESH,
S/O LATE DEVE GOWDA,
AGED ABOUT 50 YEARS,
R/AT TALIHALLA VILLAGE,
VASTARE HOBLI,
CHIKMAGALUR TALUK,
CHIKMAGALUR DISTRICT - 577 101.
                                         ...RESPONDENT

(BY SRI.PRASHANTH KUMAR D., ADVOCATE)


      THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED 16.04.2012
PASSED IN R.A.NO.167/2010 ON THE FILE OF PRINCIPAL
DISTRICT JUDGE, CHIKMAGALUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
08.04.2010 PASSED IN O.S.NO.26/2004 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE, CHIKMAGALUR.


IN R.S.A. NO.819/2014

BETWEEN:

SRI. T. D. SOMESH,
S/O LATE DEVE GOWDA,
AGED ABOUT 52 YEARS,
R/AT TALIHALLA VILLAGE,
                               3




VASTARE HOBLI,
CHIKMAGALUR DISTRICT - 577 112.
                                               ... APPELLANT

(BY SRI. PRASHANTH KUMAR D., ADVOCATE)

AND:

1.     SMT. H. V. VEENA,
       W/O MANJUNATH,
       AGED ABOUT 49 YEARS,

2.     H. V. VANI,
       W/O SADANANDA,
       AGED ABOUT 47 YEARS,
       WORKING AT TAPCMS,

3.     SMT. INDIRA H.V.,
       W/O LAXMANA GOWDA,
       AGED ABOUT 54 YEARS,

       ALL ARE R/O ARAVINDA NAGARA,
       BASAVANAHALLI,
       CHIKKAMAGALUR - 577 112.

4.     SMT. H. V. SUDHA,
       W/O E.M. MANJUNATH,
       AGED ABOUT 48 YEARS,
       TEACHER,
       R/OF ELEHOLE VILLAGE,
       JOLDAL POST,
       CHIKKAMAGALUR TALUK,
       CHIKKAMAGALUR DISTRICT - 577 112.
                                             ...RESPONDENTS

(BY SRI.SHANKARANARAYANA BHAT N., ADVOCATE)

       THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST    THE   JUDGMENT   &     DECREE   DATED   16.04.2012
PASSED IN R.A.NO.168/2010 ON THE FILE OF THE PRL.
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DISTRICT JUDGE, CHIKMAGALUR, DISMISSING THE APPEAL
AND    CONFIRMING    THE     JUDGMENT         AND    DECREE         DATED
08.04.2010 PASSED IN O.S.NO.26/2004 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE, CHIKMAGALUR.


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


                         JUDGMENT

RSA No. 1607/2012 is a second appeal by the

defendants.

2. RSA 819/2014 is a second appeal by the

plaintiff.

3. Both these appeals arise out of O.S.

No.26/2004 filed seeking for specific performance.

4. Shri T.D. Somesh instituted the suit seeking

for specific performance of an agreement of sale dated

10.11.1994. It was his case that he had agreed to

purchase the suit property for a sale consideration of

Rs.9,00,000/- and as on the date of execution of

agreement, he had paid a sum of Rs.1,00,000/- as

advance and possession was delivered to him on that day.

It was stated that he had subsequently paid a further sum

of Rs.1,00,000/- and 15.06.1995 and a sum of

Rs.3,00,000/- on 02.08.1995 towards the sale

consideration. It was stated that the defendants had

agreed to execute the sale deed after obtaining saguvali

chit and permission from the concerned authority and

thereafter, they had obtained the saguvali chit only in the

year 2003 and also permission to sell the property from

Tahsildar on 06.06.2003. It was stated that though he had

approached the defendants on several occasions and

requested them to execute the sale deed, they did not

accede to execute the sale deed and he thereafter issued a

legal notice calling upon them to execute the sale deed

and despite receiving the legal notice, defendants had

failed to comply the notice and consequently the suit was

filed.

5. After the filing of the suit, the plaint was

amended and an alternative relief of recovery of advance

amount of Rs.5,00,000/- with interest thereon at 20% p.a.

was also sought for.

6. The defendants entered appearance and

contested the suit. They admitted that they had agreed to

sell the suit property for a sum of Rs.9,00,000/- and had

received a sum of Rs.5,00,000/- pursuant to the said

agreement. They however stated that they did not deliver

possession pursuant to the agreement and they were in

possession and enjoyment of the same. They took up the

contention that the plaintiff had committed a default and

had failed to abide by the terms of the contract. It was

stated that the defendants while issuing reply notice had

terminated the agreement and had forfeited the advance

amount of Rs.4,00,000/- and therefore, plaintiff was not

entitled to the decree of specific performance.

7. The Trial Court, on consideration of the

evidence adduced by both the parties, came to the

conclusion that the plaintiff had proved that he was ready

and willing to perform his part of the contract but however

the plaintiff was not entitled for the specific performance of

the agreement. The Trial Court also came to the

conclusion that the contention of the defendants that they

had legally terminated the agreement and forfeited the

sum of Rs.4,00,000/- was not tenable. The Trial Court

accepted the alternative plea of the plaintiff in part and

directed the refund of the advance sum of Rs.5,00,000/-

along with interest at 12% p.a. from the date of

agreement till filing of the suit and further interest at 6%

per annum from the date of suit till realisation. The suit

for the relief of specific performance of contract was

dismissed.

8. Being aggrieved by the refusal to grant specific

performance, the plaintiff preferred R.A. No.168/2010.

9. Being aggrieved by the direction to refund the

sum of Rs.5,00,000/-, defendants preferred R.A.

No.167/2010.

10. The Appellate Court clubbed both the appeals

and after re-appreciating the evidence, concurred with the

finding of the Trial Court and came to the conclusion that

there was no good ground to interfere with the Judgment

of the Trial Court. The Appellate Court accordingly

dismissed both the appeals.

11. RSA 1607/2012 is preferred by the defendants

on 10.08.2012 challenging the decree of the Courts below

directing refund of the sum of Rs.5,00,000/- along with

interest. The plaintiff whose appeal was also dismissed on

the same day by the same Judgment, filed an execution

petition on 28.03.2013 for recovery of the sum awarded

under the Decree of the Trial Court and as affirmed by the

Appellate Court.

12. Subsequently, on receipt of notice of this

second appeal filed by the defendants, the plaintiff has

preferred RSA No.819/2014 challenging the dismissal of

his appeal by the Appellate Court.

13. It is the case of Sri N.Shankaranarayana Bhat,

learned counsel, that the award of 12% interest was

excessive. He submitted that the defendants were not

liable to pay interest at 12% when there was a default on

the part of the plaintiff.

14. In my view, the Trial Court has exercised

discretion and granted interest at the rate of 12% from the

date of the agreement till the date of the filing of the suit.

It is to be stated here that out of the total sale

consideration of Rs.9,00,000/-, the defendants had

received a sum of Rs.5,00,000/- and had retained the said

sum of Rs.5,00,000/- for nearly ten years. Since the

defendants have utilised the sum of Rs.5,00,000/- for over

a period of nine years, the decree of the Trial Court

granting 12% interest on the said sum till the filing of the

suit cannot be found fault with at all.

15. No substantial question of law arises for

consideration in this appeal RSA 1607/2012 and the

same is dismissed.

16. As far as RSA No.819/2014 filed by the plaintiff

is concerned, at the outset it has to be stated here, that

there is a delay of 701 days in filing the appeal. Along

with the appeal, an application has been filed for

condonation of delay. In the affidavit accompanying the

said application, the appellant has stated as follows:

" 4. I submit that I am an agriculturist residing in a village cultivating the land. I have no personal knowledge about the court proceedings.

5. I submit that my wife is suffering from Apendicties and hence I was concentrating on the health of my wife which also costs more. On account of the ill-health of my wife I could not meet my advocate to know the proceedings of the cases.

6. I submit that I received the summons from this Hon'ble court in RSA No, 1607/2012, in the month of April 2014, on receipt of the summons I got the Vakalath filed through my advocate on 04.04.2014. Subsequently I could not meet my advocate in Bangalore to know the proceedings of the case, due to ill health of my wife and also due to my financial constraints.

7. I submit that, in the first week of June 2014 I came to Bangalore and meet my advocate then I came to know that the respondents have filed appeal against me challenging the order passed by the courts below and they have advised me to file appeal against the orders of the court below separately. Then only I came to know about my right to challenge the orders in appeal.

8. I submit that due to the ill health of my wife, due to my financial crises and for want of knowledge of my right to file an appeal, I could not file the appeal within time. For the first time I came to know that I shall also file an appeal independently challenging the orders of the court below only in the first week of June 2014. Hence I have filed this appeal."

17. Subsequently on 17.12.2021, another affidavit

is filed by the plaintiff. In the said affidavit, the

appellant/plaintiff has stated as follows:

" 4. I submit that I have engaged the professional services of Mr. A. Ravindra & Mr. S.B. Satheesha, Advocates, pracising in Chickmagalur District. Even though I have informed them regarding the huge investment made on the Appeal schedule property in terms of the developmental rights under the

Agreement to Sell dated 10.11.1994, I have requested them to prefer appeals challenging the lower courts orders and seek for specific performance of the terms of the Agreement to sell dated 10.11.1994. I submit that for the reasons best known to my Advocates practicing in Chikamagalur, they wrongly advised me to file the Execution Petition for execution of the judgment and decree dated 08.04.2010 before the Trial Court in Execution Petition No.70/2013 against the Respondents herein.

5. I submit that, During the pendency of the said Execution Petition, I have received notice from this Hon'ble Court in RSA No.1607/2012 filed by the Defendants / Respondents herein. Soon after the receipt of the same, Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates, advised me to prefer an appeal against the order dated 16.04.2012 passed in R.A. No.168/2010 and R.A. No.167/2010 before this Hon'ble Court and further informed me that they shall withdraw the Execution Petition No.70/2013 filed by me in terms of their legal advice.

6. I submit that, I have informed the aforesaid Advocates appearing before the Trial Courts at Chickamagalur that, in view of the developmental rights granted under the Agreement to sell dated

10.11.1994, I have already invested huge money and time to develop the said property and if we lose the right to challenge the orders passed by the Trial Court and 1st Appellate Court, irreparable loss and injury would be caused to me for no fault of mine. Further I was always ready and willing to comply with the terms of the Agreement to Sell dated 10.11.1994.

7. Thereafter, being satisfied with the representations and assurances regarding withdrawing the Execution Petition No.70/2013, I preferred RSA No.819/2014 before this Hon'ble Court, challenging the judgment and decree dated 08.04.2010 passed by the Trial Court and 16.04.2012 passed by the 1st Appellate Court. During the course of the hearing of the said appeals before this Hon'ble Court, it was brought to the knowledge of my counsel that in the Execution Petition No.70/2013, the Respondents herein have paid an amount of Rs.3,50,000/- in various instalments. Upon confronting the said statement of my counsel appearing before this Hon'ble Court in RSA No.819/2014 to Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates, who were handling the Execution Petition No.70/2013, it was informed to me that the said Execution Petition was withdrawn in order to facilitate me to prefer the appeal before this Hon'ble Court and Mr. A. Ravindra and Mr. S.B.

Satheesha, Advocates, further informed that the Respondents have not paid any money in the said Execution Petition.

8. I submit that being suspicious with the evasive answer of Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates, I have applied for the certified copies of the Execution Petition No.70/2013 filed before the Trial Court. Upon receipt of the said certified copy of the order sheet maintained in Execution Petition No.70/2013, it was noticed that Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates have received the following amount in cash before the Trial Court from the Respondents:

      Sl.N             Date        Amount (Rs.)
       o.
       1.        27.06.2014           1,00,000
       2.        08.08.2014             50,000
       3.        19.09.2014             50,000
        4.       07.11.2014             25,000
       5.        08.12.2014             25,000
       6.        02.01.2015             25,000
       7.        06.02.2015             25,000
       8.        06.03.2015             25,000
       9.        10.04.2015             25,000
                      TOTAL           3,50,000

9. I submit that as I was inclined to challenging the orders passed by the Trial Court and the 1st Appellate Court before this Hon'ble Court, I have instructed Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates to withdraw the Execution Petition No.70/2013 filed before the Trial Court. I further submit that Mr. A. Ravindra and Mr. S.B.

Satheesha, Advocates in violation of my instructions have not withdrawn the said Execution Petition and without my knowledge and information has received the amount from the Respondents mentioned above. Further, I respectfully submit that I have not received the said money from Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates. In view of the above, gross professional amounting to serious misconduct on the part of Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates, I have preferred a complaint before the State Bar Council of Karnataka under Section 35 of the Advocates Act, 1961. A copy of the complaint filed before the State Bar Council against Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates and copy of the Order sheet maintained in Execution Petition No.70/2013 are produced herewith and marked as Document No.1 & 2 respectively.

10. I submit that after instructing Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates to withdraw the Execution Petition No.70/2013 pending on the file

of the Trial Court, I have preferred the present appeal in RSA No.819/2014 on 18.04.2014 before this Hon'ble Court. I further submit that in gross violation of my instructions and in order to make illegal gain at my cost, Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates have not withdrawn the Execution Petition No.70/2013 and started receiving the money from the Respondents from 27.06.2014. Thereafter, it was brought to my knowledge that the said Execution Petition No.70/2013 was closed in terms of the interim order passed by this Hon'ble Court in RSA No.1607/2012.

11. I humbly submit that I have not received any money from the Respondents in the Execution Petition No.70/2013. Further I submit that, I have not instructed the Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates to receive the money on my behalf. In view of the foregoing it is submitted that the illegal actions and professional misconduct on the part of the Mr. A. Ravindra and Mr. S.B. Satheesha, Advocates shall not affect the legal rights brought through this Appeal pending for adjudication before this Hon'ble Court."

18. The Regular Appeal No.168/2010 was

dismissed on 16.04.2012. As per the first affidavit filed,

the plaintiff does not dispute the fact that he was aware of

the dismissal of the appeal. The fact that the plaintiff was

aware of the dismissal of his appeal and his entitlement to

seek for recovery of the sum of Rs.5,00,000/- with interest

becomes glaringly evident by the filing of the Execution

Petition on 28.03.2013 i.e. about three months after the

expiry of period of limitation. Even according to the

plaintiff, he was inspired to prefer an appeal only after he

had received notice of the second appeal filed by the

defendants. According to the plaintiff, immediately on

receipt of the notice he ensured appearance through his

counsel on 04.04.2014 and thereafter in the month of

June, 2014, he decided to prefer a second appeal. It is

obvious that immediately on becoming aware of the filing

of the second appeal by the defendants, the plaintiff was

conscious about the fact that the defendants were

challenging their liability to refund the advance sum of

Rs.5,00,000/-. The plaintiff despite being aware of this

challenge by the defendants, chose to keep quiet for a

period of two months to prefer the appeal. It is

unbelievable that the plaintiff who intended to prefer an

appeal against the refusal of specific performance, would

spring into action only after an appeal was filed by the

defendants. The fact that the plaintiff filed an execution

petition in the month of March, 2013 is proof of the fact

that he had accepted the refusal of the decree of specific

performance and he had preferred this appeal only as a

counter-blast to the second appeal preferred by the

defendants.

19. It is also not in dispute that even after the

appeal was filed, plaintiff's counsel continued to receive

monies from the defendants. It is an admitted fact that a

sum of Rs.3,50,000/- has been received by the plaintiff

through his counsel after the filing of the second appeal.

No doubt the plaintiff contends that though he had

instructed his counsel to withdraw the execution petition

but they had not taken any steps to do so. In my view,

the story set up in the second affidavit cannot be accepted

at all. If, as a matter of fact, it was the intention of the

plaintiff to withdraw the execution petition and prefer a

second appeal, he would have ensured that a proper

application was made seeking for withdrawal of the

execution.

20. It is obvious to me that this narration that the

plaintiff's counsel did not take any steps to withdraw the

execution petition is an afterthought only to protect the

sum of Rs.3,50,000/- which is virtually 60% of the decretal

amount received. In my view the apprehension of the

plaintiff that he cannot be made to suffer for the

consequences of his counsel's actions cannot be accepted.

Admittedly, the Execution Petition was preferred on the

instructions of the plaintiff. The plaintiff in his affidavit

does not state that he did not instruct his counsel to prefer

the execution. Having instructed his counsel to prefer an

Execution Petition, the story setup by the plaintiff,

subsequently, about the withdrawal on becoming aware of

filing of the second appeal by the defendants cannot be

accepted at all.

21. It is obvious that this story has been set up

only to get over the receipt of a sum of Rs.3,50,000/-. In

my view the conduct of the plaintiff deserves to be

deprecated in the strongest possible terms. The plaintiff

has chosen to shift the blame on his counsel for the receipt

of Rs.3,50,000/-. Admittedly, no written instructions have

been given to the counsel. The plaintiff, even according to

him, despite being advised to prefer a second appeal, has

chosen not to withdraw the execution and has chosen to

receive the sum of Rs.3,50,000/- through his counsel.

This conduct disentitles the plaintiff from any relief from

the hands of this Court. The further conduct of the plaintiff

in blaming his counsel for receiving the money also

deserves to be condemned. It is to be stated here that, as

a matter of fact, if plaintiff had not intended to collect the

said sum of Rs.3,50,000/-, he ought to have taken steps

immediately in the Execution Court to re-deposit the same.

It is only after filing of the affidavit, an attempt is made by

the plaintiff to state that he is ready and willing to re-

deposit the amount collected by his counsel. The entire

conduct of the plaintiff indicates that he is fundamentally

trying to pursue the second appeal and at the same time,

also get over his act of collecting the sum of Rs.3,50,000/-

paid to him under the impugned Decree/s and therefore, I

am of the view that there is absolutely no cause made out

for condonation of delay.

22. Having regard to the conduct of the plaintiff, in

my view, this is a just case to impose a cost of

Rs.50,000/- for the false affidavits filed in this second

appeal. The RSA No.819/2014 is therefore dismissed

with cost of Rs.50,000/- payable to the defendants.

Sd/-

JUDGE

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