G Venkata Krishna Rao @ G.V. ... vs Ramanivas Aswa
2022 Latest Caselaw 1177 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

            DATED THIS THE 27TH DAY OF JANUARY 2022

                            BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                     RSA.NO.6128/2011 (SP)
BETWEEN

G VENKATA KRISHNA RAO
 @ G.V. KRISHNA RAO S/O. LATE KOTAIAH
AGE: MAJOR, OCC: AGRICULTURE,
R/O. SADASHIVA NAGAR,
SIRUGUPPA, DIST: BELLARY.
                                                    ... APPELLANT

(BY SRI.GANGADHAR J.M. & SRI.S.K.DESHPANDE, ADVS.)


AND

1.     RAMANIVAS ASWA
       SINCE DECEASED BY HIS LRS,

a.     MOHANLAL ASWA,

b.     PARASURAM ASWA

c.     PURUSHOTHAM ASWA

d.     GOVINDA NARAYANA ASWA

       R1(a) TO (d) ARE MAJORS, OCC: BUSINESSMEN,
       R/O. 52, WARD NO. XI, BELLARY.

e.     LAKSHMI BAI ASWA,
       SINCE DECEASED BY HER LRS,

e(i)   SAVITRAI BAI SONI W/O SONI
                                2




e(ii) . SHANTHA BAI DARAK,
        W/O. DARAK

e(iii). PADMA BAI MANIYAR
        W/O. MANIYAR

e(iv). KANTA BAI LOYA,
       W/O. LOYA

e(v). LEELA TOSANI WALA
      W/O. TOSANIWALA

e(vi). RAMAVALLABHA ASWA
       S/O. RAMACHANDRA ASWA

     R1(e) TO e(vi) ARE MAJORS,
     R/O. FLOWER STREET, BRUCEPET, BELLARY

                                              ... RESPONDENTS

(BY SRI.SRINAND A.PACHHAPURE, ADV. FOR R1(b & c),
R1(a) HELD SUFFICIENT, R1e(i TO v HELD SUFFICIENT,
R1(d) SERVED; R1e(vi) ABATED


      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING

TO ALLOW THE APPEAL AND THE JUDGMENT AND DECREE OF THE

PRL. SENIOR CIVIL JUDGE, BELLARY IN O.S.NO.381/2000 DATED

06.12.2008 AND THAT OF FAST TRACK COURT-II, BELLARY DATED

19.08.2011 IN R.A.NO.16/2009 BE SET ASIDE AND THE SUIT OF THE

PLAINTIFF/ APPELALNT BE DECREED FOR SPECIFIC PERFORMANCE.



      THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
                                    3




                          JUDGMENT

The captioned regular second appeal is filed by the

plaintiff questioning the judgment and decree of the first

appellate court wherein the first appellate court has partly

allowed the appeal filed by the present plaintiff and has

ordered for refund of earnest money of Rs.75,000/- with

interest at 8% p.a. from the date of execution of the suit

agreement.

2. Brief facts of the case are that:

The appellant/plaintiff filed a suit for specific

performance of contract in O.S.No.381/2000. The

appellant/plaintiff contended that one Ramavallabha Aswa

husband of defendant No.1E, father of defendant Nos.1B to

E and brother of defendant No.1E(vi) executed agreement

of sale on 03.12.1991 for sale consideration of Rs.80,000/-

in respect of 4.80 acres and paid earnest money of

Rs.75,000/-. The appellant/plaintiff specifically contended

that he was ever ready and willing to perform his part of

contract and the time stipulated was 11 months to enable

the defendants to demarcate the boundary and also to

clear income tax and thereafter, it was agreed that vendor

would execute a sale deed by receiving balance sale

consideration of Rs.5,000/-. The appellant/plaintiff has also

contended that, it was also agreed under the suit

agreement that possession has to be delivered on the date

of execution of the sale deed. The grievance of the

appellant/plaintiff is that original agreement holder i.e.,

husband of defendant No.1E did not take any steps to clear

the income tax and necessary permission was also not

sought. This compelled the appellant/plaintiff to issue legal

notice on 27.07.1999 calling upon the defendants to

execute the sale deed. Therefore, he filed the suit in

O.S.No.381/2000. Pending suit, original executant died and

the present respondents/defendants being his legal heirs

were brought on record.

3. Respondents/defendants contested the

proceedings by filing written statement and stoutly denied

the entire averments made in the plaint.

Respondents/defendants specifically contended that the

relief sought by the plaintiff is barred by time and

executant of agreement of sale was not the absolute owner

of the property and it was executed only by way of

security. Respondents/defendants also contended that

value of the property as on the date of agreement was

more than Rs.3,00,000/- per acre and therefore,

contended that suit is liable to be dismissed.

4. The trial court having assessed oral and

documentary evidence answered issue Nos.1 to 3 in the

negative by holding that appellant/plaintiff has failed to

prove due execution of suit agreement and payment of

earnest money of Rs.75,000/-. The trial court also recorded

a finding that appellant/plaintiff has failed to prove his

readiness and willingness to perform his part of contract.

While answering issue No.4, the trial court recorded a

finding that suit filed by the appellant/plaintiff is barred by

time. On these set of reasoning, the trial court proceeded

to dismiss the suit.

5. The first appellate court on re-appreciation of

oral and documentary evidence has reversed the finding of

the trial court insofar as due execution of suit agreement is

concerned. The first appellate court having independently

assessed oral and documentary evidence answered point

No.1 in the negative by holding that trial court erred in

disbelieving due execution of the suit agreement as per

Ex.P1 and payment of earnest money of Rs.75,000/-. The

first appellate court on re-appreciation of material on

record was of the view that appellant/plaintiff succeeded in

proving the due execution of the suit agreement and

payment of earnest money. However, while answering

point Nos.1 to 3, the first appellate court has come to the

conclusion that appellant/plaintiff has failed to prove his

readiness and willingness. Even in regard to limitation, the

first appellate court was of the view that claim of

appellant/plaintiff is barred by limitation. The first appellate

court having taken note of the date of suit agreement was

of the view that present suit is filed after 9 years and

therefore, has come to the conclusion that claim of the

appellant/plaintiff is barred by limitation and unenforceable

against the respondents/defendants. However, having

recorded a finding that due execution of suit agreement is

proved, the first appellate court has proceeded to allow the

appeal in part granting lesser relief of refund of earnest

money of Rs.75,000/- with interest at 8% p.a. It is against

these judgments and decree of the courts below, the

appellant/plaintiff is before this court.

6. Heard the learned counsel for the appellant and

learned counsel for the respondents. Perused both the

judgments under challenge.

7. The material on record would clearly indicate

that appellant/plaintiff is asserting right on the basis of

registered agreement to sell executed by husband of

respondent No.1E on 03.12.1991. Under the suit

agreement, husband of respondent No.1E has agreed to

sell 4.80 acres out of 22 acres for sale consideration of

Rs.80,000/- and received earnest money of Rs.75,000/-.

As per the recitals of the suit agreement, the parties

agreed that sale deed has to be executed within a period of

11 months. It was also agreed that vendor would deliver

possession on the date of execution of the sale deed. The

material on record indicates that appellant/plaintiff has

issued a legal notice on 27.07.1999 as per Ex.P2 and the

suit is filed on 27.07.2000, nearly after 1 year after issuing

legal notice. If the materials on record are taken into

consideration, this court would find that the

appellant/plaintiff has approached the court seeking

enforcement of suit agreement vide Ex.P1 after lapse of 9

years. The explanation offered by the appellant/plaintiff is

that respondents/defendants having executed suit

agreement have not taken any steps to get the portion

agreed under the suit agreement demarcated. The

appellant/plaintiff has also contended that defendants have

not secured income tax clearance certificate. If the material

on record is meticulously examined, this court would find

that appellant/plaintiff has not established his readiness

and willingness to perform his part of contract. If the

agreement is of the year 1991, no reasonable explanation

is forthcoming as to what prevented the appellant/plaintiff

to keep quiet for almost 8 years before issuance of legal

notice on 27.07.1999. Having issued legal notice on

27.07.1999, the appellant/plaintiff again kept quiet for

almost 1 year and the suit is filed on 28.07.2000. Even this

1 year period is not properly explained as to what

prevented the appellant/plaintiff from immediately

approaching the court.

8. It is a trite law that appellant/plaintiff has to

establish his readiness and willingness from the date of

execution of the suit agreement till adjudication of his

claim before the competent civil court. His readiness and

willingness should subsist till rights are decided. But

however, the records speak contrary to what is claimed by

the appellant/plaintiff. Even if time is not essence of

contract, the conduct of appellant/plaintiff does not indicate

that he was ever ready and willing to perform his part of

contract. Mere pleading in the plaint would not amount to

compliance of the ingredients of readiness and willingness

to perform his part of contract.

9. The clinching rebuttal evidence let in by the

defendants also goes against the claim of the

appellant/plaintiff. It is the specific case of the defendants

that, as on the date of execution of the suit agreement, the

market value of the suit schedule property was

Rs.3,00,000/- per acre. To substantiate their claim,

respondents/defendants have produced Ex.D1 which is

certified copy of judgment in LAC Nos.3/92 & 3/93. In the

said proceedings, the market value of the land was fixed at

Rs.3,00,000/- was reduced to Rs.2,75,000/- per acre.

Therefore, there is categorical finding of fact recorded by

the trial court that the market value of the suit property

was Rs.3,00,000/-. Though the first appellate court has

reversed the finding recorded by the trial court on suit

agreement and has come to the conclusion that

appellant/plaintiff has established that present transaction

was one for sale consideration and it was not security

document, however, rebuttal evidence on record would

clearly indicate that market value referred to in the suit

agreement appears to be very negligible and minimal. The

possession was also not delivered under the agreement to

sell, then agreement holder cannot be expected not to

insist enforcement of contract by calling upon the vendor to

perform his part of contract. Though substantial amount

was paid and what was pending was negligible amount of

Rs.5,000/-, however, the fact that possession was not

delivered would be an relevant factor and would have a

bearing on the finding on readiness and willingness. If the

agreement holder is not handed over possession of

immovable property which is an agricultural land, no

prudent man could wait for 9 years without seeking

enforcement of contract. All these significant details would

go against the claim of appellant/plaintiff. Therefore, the

finding of both the courts below that appellant/plaintiff has

failed to prove his readiness and willingness and the claim

of appellant/plaintiff is barred by limitation is based on

material on record. Therefore, the judgment and decree of

the courts below does not suffer from any illegality or

infirmity.

10. No substantial question of law arises for

consideration in the present appeal. Accordingly, the

appeal stands dismissed.

Sd/-

JUDGE MBS/-