B Basavarajappa vs B S Rajashekharaiah
2022 Latest Caselaw 5063 Kant

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF MARCH, 2022

                       BEFORE

         THE HON'BLE MR.JUSTICE R. NATARAJ

            R.S.A. NO. 927 OF 2015 (SP)
BETWEEN:

B.BASAVARAJAPPA,
S/O B. ESHWARAPPA,
AGED ABOUT 51 YEARS,
R/AT BARANDUR VILLAGE,
BHADRAVATHI TALUK,
NOW R/AT SHANKARAGATTA,
BHADRAVATHI TALUK-577301.
                                           ...APPELLANT
(BY SRI. H.S.SANTHOSH, ADVOCATE)

AND:

B.S. RAJASHEKHARAIAH,
S/O H. SHIVASHANKARAPPA,
AGED 55 YEARS,
R/AT MALLENAHALLI VILLAGE,
BHADRAVATHI TALUK-577302.
                                         ...RESPONDENT

(BY SRI. H.B.RUDRESH AND SRI.K.N.SUBRAMANI , ADVOCATE)
      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 10.03.2015 PASSED IN R.A.NO.120/2012 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT,
BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 10.04.2012 PASSED IN
O.S.NO.139/2005 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, BHADRAVATHI.

     THIS R.S.A. COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                      2



                              JUDGMENT

This appeal is filed by the unsuccessful plaintiff

challenging the concurrent finding of fact recorded by both

the Courts by which, the suit for specific performance of an

agreement of sale was dismissed.

2. The parties shall henceforth be referred to as

they were arrayed before the Trial Court. The appellant

was the plaintiff and the respondent was the defendant

before the Trial Court.

3. The suit in O.S. No. 139/2005 was filed for

specific performance of an agreement of sale dated

02.07.2002, by which the defendant had purportedly

agreed to sell the suit property for a total sale

consideration of Rs.80,000/- in favour of the plaintiff and

had received a sum of Rs.50,000/- as part of the sale

consideration. The defendant had allegedly agreed to

execute a deed of sale of the suit property within three

years after receiving the balance sale consideration. The

plaintiff alleged that after arranging the balance sale

consideration, he requested the defendant to conclude the

sale transaction which did not fructify. Hence, the plaintiff

was constrained to issue a notice on 08.05.2005 and on

23.05.2005 calling upon the defendant to conclude the

sale transaction. On the failure of defendant to conclude

the sale transaction, the plaintiff filed a suit for specific

performance of agreement of sale. In the alternative, he

sought for refund of the advance amount of Rs.50,000/-

with interest at the rate of 18% p.a.

4. The suit was contested by the defendant who

contended that he borrowed a sum of Rs.50,000/- and as

security for repayment of the said amount, an agreement

of sale dated 22.07.2022 was executed. He claimed that

he had paid a sum of Rs.50,000/- to the plaintiff and a

sum of Rs.5,000/- was paid by his brother- Kantharaj and

a sum of Rs.25,000/- was paid by his another brother-

B.S.Palakshappa. He therefore contended that he had

repaid the entire loan amount due to the plaintiff. He

claimed that the property was valued at Rs.2,00,000/- in

the year 2002 and therefore, the claim of the plaintiff that

the defendant had agreed to sell the suit property for

Rs.80,000/- was improbable.

5. Based on these rival contentions, the Trial

Court framed the following issues:

1. "Whether the plaintiff proves that defendant has agreed to sell the suit schedule property for a sum of Rs.80,000/- and executed the agreement of sale in is favour on 22.07.2022 and received advance amount of Rs.50,000/- from him?

2. Whether the plaintiff proves that defendant has agreed to receive balance of sale price amount of Rs.30,000/- within three years and further agreed to clear the taxes payable to the suit schedule property to the suit schedule property and execute registered sale dded in his favour?

3. Whether the plaintiff proves that is ready and willing to perform his part of the contract?

4. Whether the plaintiff proves that defendant has failed to perform his part of the contract?

5. Whether plaintiff proves that he is entitled for the relief of specific performance of the contract?

6. Whether the plaintiff proves that he is entitle to recover the advance amount of Rs.50,000/- paid by him to the defendant with interest at the rate of 18% p.a. from the date of the transaction in the alternative?

7. To what or decree the parties are entitled to?"

6. In order to substantiate his case, the plaintiff

was examined as P.W.1 and he marked documents as

Exs.P1 to P8. He examined two witnesses as P.Ws.2 and 3.

On the other hand, the defendant was examined as DW.1

and marked documents as Exs.D1 to D10. He examined

witnesses as DWs.2 to 4.

7. Based on the oral and documentary evidence,

the Trial Court held that though execution of the

agreement was admitted by the defendant, the contention

of the defendant that the agreement was executed as

security for the loan transaction was probable since three

years was fixed for conclusion of the transaction. The Trial

Court noticed that the plaintiff had entered into similar

such sale transaction with various persons and had

cancelled them thereafter. The Trial Court therefore held

that the plaintiff was a money lender whose modus

operandi was to enter into similar transactions with various

persons and later, cancel such agreements. Thus, the Trial

Court held that the agreement in question was one of

many such agreements so as to secure hand loan. It also

noticed that the plaintiff had constructed a basement floor

in the suit property and the walls of the building were

raised upto lintel level. Therefore, the Trial Court held that

the sale agreement entered into between the plaintiff and

the defendant was not as portrayed by the plaintiff and

that it was probable that the defendant had executed it to

assure the repayment of loan. The Trial Court further

noticed that the plaintiff had issued Ex.D.9 which was a

notice addressed to the defendant, calling upon him to

repay a sum of Rs.50,000/- along with interest @ 18%. In

this notice, the plaintiff referred to an agreement of sale

allegedly executed by the defendant in respect of an

agricultural land. The Trial Court held that the plaintiff

never pleaded about purchasing an agricultural land from

the defendant. Hence it held that the plaintiff had obtained

signatures of the defendant on several blank papers which

he used to his advantage. It also held that mere issuance

of notice is not sufficient and that there should be an

unqualified offer to pay the balance sale consideration,

which was absent in the case and hence, dismissed the

suit. However, it held that the brother of the defendant

(D.W.3) had paid a sum of Rs.20,000/- towards repayment

of the loan and as the defendant did not furnish proof of

payment of Rs.30,000/-, it directed the repayment of

Rs.30,000/- along with interest @ 6% per annum.

8. Being aggrieved by the aforesaid judgment and

decree, the plaintiff filed an appeal in R.A.No.120/2012

before the First Appellate Court. The First Appellate Court

secured the records from the trial Court and heard the

learned counsel for the parties and framed the following

points for consideration.

1. "Whether the impugned judgment under appeal is erroneous, illegal, arbitrary, contrary to evidence and material on record and there is a need for interference by this Court?

2. What Order?"

9. Based on the oral and documentary evidence,

it held that the plaintiff did not establish that the

agreement in question was genuine and therefore was

non-enforceable. It also noticed that the plaintiff was a

money lender who was in the habit of entering into such

transactions to secure the repayment of loan. Therefore,

the First Appellate Court exercised its discretion under

Section 20 of the Specific Relief Act, 1963 and rejected the

appeal and confirmed the judgment and decree of the trial

Court.

10. Being aggrieved by aforesaid judgment, the

plaintiff has filed the present Regular Second Appeal.

11. Learned Counsel for plaintiff submitted that

though the defendant had contended that the agreement

was executed as a security for repayment of a hand loan,

yet the Trial Court did not frame any issue to that effect. It

did not cast the burden on the defendants to prove the

said contention. He further submitted that the Trial Court

having answered the issue regarding execution of the

agreement in the affirmative and the plaintiff having paid

more than 50% of the agreed sale consideration, the

Courts must have decreed the suit for specific

performance.

12. As rightly submitted by the learned counsel for

the plaintiff, the Trial Court must have framed an issue

regarding the defence of the defendant that the agreement

of sale in question was to secure a hand loan. However,

the way in which the case is conducted by the parties

indicate that both of them knew the dispute and went to

trial in that background. Therefore, non-framing of an

issue cannot result in disturbing the finding of fact

recorded by the Trial Court.

13. It is now well settled in law that a decree for

specific performance need not to be granted only on the

ground that it is lawful to do so. It is for the Court to

exercise discretion to do justice between the parties. In

the case on hand, as found by the Trial Court, the property

agreed to be sold was not a mere vacant site but the

defendant had constructed basement and also raised the

building upto the lintel level. The claim of the plaintiff that

the defendant had executed an agreement of sale in

respect of the vacant site for consideration of Rs.80,000/-

is unbelievable. Even otherwise, the plaintiff has not

explained why time of three years fixed for completion of

the sale transaction. In addition, the evidence discloses

that the plaintiff and his wife had entered into several

agreements of sale with various persons and thereafter

cancelled them, making it probable that this was the

modus operandi of the plaintiff to secure the loan

advanced. The circumstances noted by both the Courts

leads no doubt that the transaction in question was also

meant to secure the loan advanced by the plaintiff to the

defendant. The Trial Court has considered the evidence in

detail and has recorded the finding that the transaction in

question was not genuine and was primarily to secure the

hand loan that the defendant had raised. They also found

that the plaintiff had received a sum of Rs.20,000/-

through cheque drawn by the brother of the defendant

towards repayment of the loan.

14. The Trial Court therefore worked out equity

between the parties by directing the defendant to pay a

sum of Rs.30,000/- from the defendant with interest at the

rate of 6% p.a. I do not see any error in the exercise of

discretion by the Trial Court and the First Appellate Court .

Hence the appeal lacks merit and is dismissed.

Sd/-

JUDGE

PN